Macrotech Vs State of Maharashtra

Digitally signed
Jitendra by Jitendra S.
S. Nijasure
Date: 2021.03.02
Nijasure 19:16:33 +0530 WPST-1118-21.doc
Sharayu Khot & JSN.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 1118 OF 2021
Macrotech Developers Limited

(earlier known as Lodha Developers Ltd.)
a company incorporated under the
Companies Act, 1956, having its offce at
Lodha Excelus, Apollo Mill Compound,
…Petitioners
Mahalakshmi, Mumbai – 400 012.
Versus
1. The State of Maharashtra

2. Sanjay Phulwaria
Having address at C/33,
Railway Offcers Flats,
Badhwar Park, Colaba
Mumbai 400005
3. Paromita Phulwaria
Having address at C/33,
Railway Offcers Flats,
Badhwar Park, Colaba
Mumbai 400005 …Respondents
----------
Mr. Sharan Jagtiani, Senior Counsel a/w Mr. Prashant Gawali,
Mr, Akshay Doctor, i/by Prashant Gawali for the Petitioners.
Mr. C.D. Mali, AGP for the Respondent-State.
Mr. Mayur Khandeparkar, Counsel a/w Mr. Vikramjit Garewal
Mr. Kaustubh Patil, i/by P.D. Gandhy & Associates, for the
Respondent Nos. 2 and 3.
----------
CORAM : K.K. TATED &

R.I. CHAGLA, JJ.
Reserved on : 26 February 2021
Pronounced on : 1 March, 2021
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JUDGMENT : (Per R.I. Chagla, J.)
1. Rule. Rule made returnable forthwith.
2. By this Petition fled under Article 226 of the
Constitution of India, the Petitioners have sought quashing and
setting aside of the order dated 31st December 2020 passed by
the Adjudicating Offcer, Maharashtra Real Estate Regulatory
Authority (for short “MahaRERA”) in Complaint No. CC
006000000056889 (“the impugned order”).
3. The Petitioners have further sought for declaration
that the Petitioners are not required to register the Phase of its
project “Lodha Dioro” upto 40th foors under the provisions of
Section 3 of the Real Estate (Regulation and Development) Act,
2016 (for short “the Act”), in view of the part occupancy
certifcate in respect thereof having been obtained/issued by
the Mumbai Metropolitan Region Development Authority (for
short “MMRDA”) prior to 1st August 2017.
4. The Petitioners are in the business of developing
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real estate since the last over three decades. The Petitioners
claim to be one of the largest real estate developers in the
country with presence in foreign countries as well. The
Petitioners are developing a project at Wadala, Mumbai named
‘New Cuffe Parade’ (for short referred to as “ the project”). The
development is a phase-wise development.
5. Respondent No. 1 is the State of Maharashtra.
Respondent Nos. 2 and 3 are the Complainants on whose
complaint, the Adjudicating Offcer appointed under the
provisions of the Act has passed the impugned order which is
under challenge in this Petition. Respondent Nos. 2 and 3 for
the sake of brevity shall be referred to hereinafter as “ the
Complainants”.
6. A commencement certifcate had been issued by
MMRDA in respect of the project on 20th February 2013
allowing the Petitioners to commence construction of the
buildings forming part of the project. Thereafter, the registered
agreement for sale had been entered into between the
Petitioners and the Complainants as the purchasers in respect
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of Flat No. 2503 (for short “the fat”) located in Wing A of the
building called Lodha Dioro on 23rd July 2013 (for short “the
building”). Under the said agreement for sale dated 23rd July
2013, the carpet area has been defned in Clause 1.9 of the
agreement for sale. The total consideration payable in respect
of the Flat is a sum of Rs. 2,70,78,705/- to be paid in a
staggered manner as more particularly provided for in Clause 5
of the said agreement. It was provided in Clause 11 of the said
agreement that the Petitioners would handover the possession
of the fat to the Complainants for ft out by 31st December
2015.
7. On 1st May 2017, the relevant provisions of the Act
came into force. Under Section 3 of the Act, the Promoters were
required to register their ongoing projects with the concerned
Authority (in the present case, MahaRERA) within three
months from the date on which the provisions of the Act came
into force on 1st May, 2017 (i.e. by 31st July, 2017). It is to be
noted that the 2016 Act received the presidential assent on
25th March 2016.
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8. Under the Maharashtra Real Estate (Regulation
and Development) (Registration of Real Estate Projects,
Registration of Real Estate Agents, Rates of interest and
Disclosures on Website) Rules, 2017 (for short “ the
Registration Rules”), Rules were made by the Government of
Maharashtra in exercise of its powers conferred by Clauses (a),
(ab), (ac), (b) to (k), (oa), (p) and (zf) of Sub-section 2 of
Section 84 of the Act. These Registration Rules were published
in the Maharashtra Government Gazette on 8th February
2016. One such Rule being Rule 4 provides for disclosure by
promoter of ongoing real estate projects. The Rule 4 (1) of the
Registration Rules clarifes that the three months window for
mandatory registration for each such phase of the project shall
commence from 1st May 2017 i.e. when Section 3 was brought
into force.
9. On 8th June 2017, a part occupancy certifcate was
received in respect of ground plus 40 foors of the building
Lodha Dioro. The Complainants’ Flat was located on the 25th
foor of the building for which the part occupancy certifcate
had been issued within the three months window for
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mandatory registration commencing from 1st May 2017 and
ending on 31st July, 2017.
10. The Complainants fled complaints before the
MahaRERA (the Authority under the Act) in the year 2017
inter alia alleging delay on the part of the Petitioners in
handing over possession of the Flat and accordingly, seeking
compensation. Since the project had not been registered with
MahaRERA, the Complainants also sought directions against
the Petitioners to register the project.
11. The Full Bench of MahaRERA had occasion to
determine the issue as to jurisdiction of MahaRERA in a matter
where part occupancy certifcate had been received within the
three month window from the commencement of Section 3 of
the Act i.e. 1st May 2017. This was in the matter of the Mr.
Prasad Patkar Vs. M/s. Runwal Projects Pvt.Ltd.1. The Full
Bench of MahaRERA by order dated 17th November, 2017 held
that MahaRERA only gets the jurisdiction to entertain
complaints in respect of registered projects and cannot
entertain complaints in respect of projects that are not subject
1 Complaint No. CC600000000182
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to registration. Since in that case the part occupancy certifcate
had been received in respect of B & C Towers it was held that
the developer therein had rightly not registered the two towers.
It was held that since the Complainants’ fat was situated in
Tower B which had not been registered under the Act,
MahaRERA had no jurisdiction to entertain the complaints.
They were held to be not maintainable.
12. Thereafter the frst complaint fled by the
Complainants herein before the MahaRERA was dismissed by
an order passed by the Authority under the Act on 18th
December 2017 on the ground that the part occupancy
certifcate had already been received for that part of the
building in which the fat was located and therefore, there was
no question of registration of the same with MahaRERA.
13. Being aggrieved by the dismissal of their
complaints, the Complainants fled Writ Petition (L) No. 2639 of
2018 against inter alias the Petitioners in this Court. Certain
other fat purchasers were also shown as purchasers in the said
Writ Petition. The Complainants/Respondents herein
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challenged the grant of the part occupancy certifcate by the
MMRDA in favour of the Petitioners and sought for revocation
of the part occupancy certifcate and upon which for a direction
against the Petitioners to register the ground plus 40 foors of
the building with the MahaRERA.
14. The possession letter was issued by the
Petitioners on 10th April 2018, the contents whereby have been
counter-signed/acknowledged by the Complainants, whereby
the Complainants have been handed over possession of the fat
upon the terms and conditions set out therein. It is expressly
mentioned in the possession letter that upon accepting keys of
the fat, the Complainants were deemed to have confrmed and
undertaken that they were satisfed with the fat and they had
no complaints/grievance of any nature whatsoever against the
Petitioners.
15. This Court by an order dated 16th October
2018 dismissed Writ Petition (L) No. 2639 of 2018 subject to
directions issued in paragraph 24 of the said order whereby
the MMRDA is directed to supervise further work to be
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undertaken in respect of the building.
16. MahaRERA had further occasion to consider
the complaint fled by one of the fat purchasers in respect of
the project in the case of Mr. Haresh Jethmal Asher Vs. M/s.
Bellissimo Crown Buildmart Pvt. Ltd.2. By an order dated 12th
September 2018, the Authority disregarded the Full Bench
order and held that it has jurisdiction to entertain the
complaint of Mr. Haresh Asher despite the fact that the project
did not require registration.
17. In an Appeal preferred in the matter of
Haresh Asher (supra), an order was passed by the Appellate
Authority of MahaRERA on 25th October 2018 dismissing the
Petitioner’s challenge to the order dated 12th September 2018
passed by the Authority. The order of the Appellate Authority
was challenged by the Petitioners by way of Second Appeal. The
Second Appeal came to be disposed of by this Court, since the
Petitioners and Mr. Haresh Asher arrived at a settlement. An
affdavit was affrmed by Mr. Haresh Asher as part of the
settlement whereby he acknowledged that he accepted the
2 Complaint No. CC60000000044384
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Petitioner’s contention that the project did not require to be
registered.
18. In November 2018, the Second Complaint was
fled by the Complainants herein before the Adjudicating Offcer
seeking prayers similar to the one sought in the First
Complaint. On account of the numerous complaints have been
fled raising common issues to those raised in the Second
Complaint, the Authority had decided to constitute a Full Bench
to decide these issues. This was challenged by the complainants
before this Court by fling Writ Petition No. 3701 of 2019. On
11th September 2019 this Court disposed of the said Writ
Petition by directing the Authority to take up the Second
Complaint in accordance with law and consider the objection
raised by the Petitioners with respect to jurisdiction and
powers of the Authority. This Court had thus kept the
Petitioner’s challenge to jurisdiction open.
19. The impugned order was passed by the
Adjudicating Offcer on 31st December 2020 after considering
the detailed reply fled by the Petitioners raising objections as
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to the maintainability of the Second Complaint. The
Adjudicating Offcer held that the Second Complaint was
maintainable and the Adjudicating Offcer had jurisdiction to
try and hear the same. The impugned order concludes that
since the project was a “luxury project”, the petitioners ought
to have avoided a situation where the service ducts are passing
through the bedrooms. Compensation of Rs.2,00,000/- has been
granted to the complainants. In addition the Petitioners have
been directed to pay the Complainants a sum of Rs.2,70,664/-
for defcit carpet area. The Petitioners have been directed to
pay interest at the rate of 10.40% p.a. on all monies payable
under the impugned order from the date of fling the complaint
along with costs quantifed at Rs.20,000/- Being aggrieved by
the impugned order, the present Writ Petition has been fled.
20. The Complainants have fled their Reply to the
present Writ Petition. This Court issued Rule in the present
Writ Petition on 29th January 2021. Since the parties to the
Petition has sought for expedited hearing of this Petition, this
Petition has been taken up for fnal disposal.
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21. Mr. Sharan Jagtiani, the learned Senior
Counsel appearing for the Petitioners have submitted that on a
true and proper interpretation of the relevant Sections, Rules,
and circulars, a Real Estate Project or a Phase of Real Estate
Project in respect of which completion certifcate (including
part occupancy certifcate) having been received before the
statutory period of registration of three months from 1st May
2017 comes to an end, is not required to be registered under the
Act and Registration Rules thereunder. He has relied upon
certain defnitions in the Act including 2(j) which defnes
“Building” which includes part of a structure or erection;
Section 2(q) which defnes “Completion Certifcate” to mean
Completion Certifcate or such certifcate by whatever name
called certifying that a real estate project has been developed
according to the approved sanctioned/layout plan; Section 2(zj)
which defnes “Project” to mean Real Estate Project and Section
2(zn) which defnes “Real Estate Project” to mean the
development of a building or a building consisting of
apartments for the purpose of selling all or some of the said
apartments and includes common areas. He has referred to
Rule 2(p) of the Registration Rules which defnes “Phase of a
Real Estate Project” and which provides that a phase may
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consist of a building or a wing of the building in case of building
with multiple wings or defned number of foors in a multi-
storied building/wing.
22. The learned Senior Counsel for the Petitioners
have submitted that from the defnition of a “building” under
the Act as well as of “phase of Real Estate Project” in
Registration Rules, it is clear that building or the phase
includes part of a building, defned number of foors in a
multistoried building/wing. He has further submitted that
considering the defnition of “building,” it would follow a Real
Estate Project could also in a given case be the development of
a part of the structure i.e. not the entire building but a defned
part of the building. He has further placed reliance on Sections
3, 4 and 5 of the Act. He has submitted that from the plain
language used in the proviso to Section 3, it is clear that
registration of the ongoing project is to be done within the
period of three months from the date of commencement of the
Act. Section 3(1) sets out a disability that results from failure
to register. It provides that promoters shall not advertise,
market, book, sell or offer for sale any apartment or building in
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any real estate project or part of it without registering the real
estate project with the Authority. He has referred to Section
3(2) and has submitted that it is a non-obstante clause vis-a-vis
Section 3(1) and provides circumstances in which no
registration of a Real Estate Project shall be required. Section
3(2)(b) indicates one such circumstance where the Promoter
has received the completion certifcate for a Real Estate Project
prior to the commencement of the Act. He has submitted that
Section 3 contains an important explanation. According to the
explanation, it says that for the purpose of this Section, where
the Real Estate Project is to be developed in phases, every such
phase shall be considered to be a standalone Real Estate
Project and the promoter shall obtain registration under the
Act for each phase separately. He has then referred to Sections
4 and 5 of the Act. He has submitted that Section 4(2)(l) is
particularly signifcant because it throws light on the
interpretation of Section 3. This Section requires a promoter to
submit a declaration supported by Affdavit stating inter alias
in Sub-Clause (c) the time period within which he undertakes
to complete the project or phase thereof, as the case may be.
Section 5(3) is again signifcant for interpretation of Section 3.
It provides that the registration granted under this Section
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shall be valid for the period declared by the promoter under
Section 4(2)(l)(C) for completion of the project of phase
thereof.
23. The learned senior Counsel has submitted
that the reference to the completion certifcate not being issued
in Section 3(1) is not tied to date of commencement of the Act.
The expression date of commencement of the Act is used in
relation to the prior expression “projects that are ongoing”.
Read as a whole and as supported by the other provisions, the
expression “and for which completion certifcate has not been
issued” relates to the obligation to make an application for
registration within a three month window. He has submitted
that the interpretation of the scope of the provisions of Section
3(1) is not affected by the non-obstinate clause in Section 3(2)
(b). The non-obstinate clause in Section 3(2)(b) deals with
completion certifcate for Real Estate Projects prior to
commencement of the Act. That is a situation where the entire
project is completed, unlike Section 3(1), it does not use
expression “or part of it”. The scope of proviso to Section 3(1)
and Section 3(2)(b) can never be the same or overlapping as
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would amount to attributing a surplusage to legislature which
could not have been the intention. He has submitted that the
explanation to Section 3 makes clear that as it requires every
such phase to be considered a standalone real estate project
and if the completion certifcate is obtained in respect of any
phase during the three month window, then as a standalone
real estate project would not require registration. He has
submitted that Section 4(2)(l)(C) and Section 5(3) reinforce
the interpretation of Section 3 as it clearly indicates therein
that a declaration is required to be fled at the time of
registration which is to indicate the time period within which
the developer indicates to complete the project or phase
thereof. He has submitted that Section 3 must be interpreted in
the context of related provisions and harmoniously with the
related provisions. In this context, he has placed reliance upon
the decision of the Supreme Court in case of Eera through Dr.
Manjula Krippendorf Vs. State (NCT of Delhi) & Anr .3 and New
India Assurance Company Ltd. Vs. Nusli Neville Wadia & Anr.4.
24. The learned Senior Counsel for Petitioners has
3 (2017) 15 SCC 133

4 (2008) 3 SCC 279
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submitted that it could never have been the intent of the
legislature to treat promoters, all of whom register during the
statutory three month window, any differently from each other.
The statutory three months window is a uniform and
universally available time period for registering.
25. The learned senior Counsel has thereafter
referred to the Registration Rules issued under the Act and in
particular Rules 3 and 4.
26. The learned Senior Counsel for the Petitioners
has submitted that from the nature of disclosures to be made
under Rule 3, it is clear that if a Real Estate Project or a part or
a phase has been completed, the nature of disclosures which
are for proposed plans and proposed utilisation would have no
applicability and no meaning. He has then referred to Rule
4(1), which provides that a promoter of ongoing Real Estate
Project in which all buildings as per the sanctioned plan has not
received occupancy certifcate or completion certifcate as the
case may be, as provided by Section 3(2)(b) shall be required to
submit application for registration for each such phase of the
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project as provided for in Section 3. The explanation to this
Sub-Rule states that a phase of a project means a building or
buildings in a project in respect of which Occupancy or
Completion Certifcate has not been received. Further, Rule
4(2) requires disclosures of ongoing Real Estate Projects. Rule
4(4) requires promoter to construct and develop the Real
Estate Project in accordance with sanctioned plan and layout
plans. The reading of Registration Rules 4(2), 4(3) and 4(4)
read with Rule 4(1) make it clear that a Real Estate Project or
part or phase thereof which is completed within the
registration window can never be registered, as the disclosures
required to be made would have no meaning when applied to
that completed part or phase. The tenor of Rule 4(2) and Rule
4(3) in respect of any part or phase which is registered in
making of disclosure of what has been completed or what is yet
to be completed. Further, Rule 4(4) indicates that upon
registration the balance construction or development must be
in accordance with sanctioned plans, which would have no
meaning if what is registered is a completed Real Estate Project
or part or phase which completion is evidenced by a completion
certifcate as defned in Explanation II to Section 4(1) of the
Act.
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27. The learned senior Counsel has placed
reliance upon the FAQs in the Authority’s website which
contains “Frequently Asked Question” to assist all stakeholders
in the understanding and implementations of the Act and the
Registration Rules. He has submitted that these FAQs would
have been contemporaneously issued with the coming into
force of the Act and the Registration Rules. Question 11 of the
“Additional FAQs 2” reads as follows:
“Q.11: If O.C./B.C.C. are issued in May/June/July, does

project have to be registered?
Ans.On-going projects have time till 30th July to register.

If before doing registration, the project has got
OC/BCC, the project has been completed as per Section
5(3) of the Act. Hence, it does not require
registration.”
submitted that it is clear from the answer in the FAQs that if
the occupancy certifcate/building completion certifcate which
would include a part occupancy certifcate had been issued
under the MRTP Act/DC Regulations 1991 in respect of that
part or phase before 30th July 2017, that project is completed
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as per Section 5(3) and does not require registration.
relied upon the Forms A and B under Rule 3(3) and Rule 3 (6)
of the Registration Rules and in particular, Clause 3 of Form B
which requires. “That the time period within which the project
shall be completed by me/promoter from the date of
registration/project” to be flled up. He has also relied upon
registration certifcate of the project in Form “C” under Rule
6(a) of the Registration Rules. He has also placed reliance upon
Circular No. 18/2018 dated 17th July 2018 issued by the
MahaRERA setting out the Standard Operating Procedure for
handling complaints and Circular No. 23/2018 dated 26th
November 2018 issued by MahaRERA setting out the Standard
Operating Procedure for handling complaints against projects
that though not registered, ought to have been registered.
30. The learned senior Counsel has submitted
that it is specifcally provided under these Circulars that in
respect of projects which ought to have been registered, but
have not been registered, the promoters had been given an
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opportunity of hearing by the Authority upon payment of a fees
and upon such hearing the Authority shall give its Ruling.
These circulars do not envisage cases which do not require
registration, as in the present case where the part occupancy
certifcate has been received for the completed phase of the
building in respect of which the complaint has been received.
relied upon certain Supreme Court rulings in support of his
submission that these Circulars are of great relevance in that
they contain an interpretation of the provisions and ambit of
the Act by contemporaneous Authorities and are to be regarded
as Authorities in ‘contemporanea expositio’. These rulings of
the Supreme Court include the cases of Desh Bandhu Gupta &
Ors. Vs. Delhi Stock Exchange Association Ltd.5, KP Varghese
Vs. ITO, Ernakulum & Anr.6 and S.B. Bhattarcharjee Vs. SD
Majumdar & Ors.7. He has submitted that the Division Bench of
this Court in Neelkamal Realtors Suburban Pvt. Ltd. & Ors. Vs.
Union of India & Ors.8 has considered the challenge to the
5 (1979) 4 SCC 565

6 (1981) 4 SCC 173
7 (2007) 10 SCC 513
8 (2018) 1 AIR Bom R 558
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legality and constitutional validity of certain provisions of the
Act as being violative of Articles 14, 19(1)(g), 20 and 300-A of
the Constitution of India. The Division Bench of this Court
whist considering the provisions of the Act has given an
analysis of Section 3 of the Act. The Division Bench of this
Court has held that the Act is prospective in nature and that
the Act will apply only after getting the project registered. He
has submitted that it is clear from this decision that the Act
would only apply the projects which had been registered or
require registration and not to project or phases thereof which
are not to be registered on count of their having been
completed.
32. The learned Senior Counsel has further
submitted that the Adjudicating Offcer did not have power to
entertain the complaints without registration of the project. He
has submitted that the Act contemplates a bifurcation between
the Authority and the Adjudicating Offcer. A plain reading of
Section 71 of the Act makes it evident that the scope of the
Adjudicating Offcer’s power is restricted to adjudication of
compensation and that too only in respect of matters arising
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out of violations of Section 12, 14, 18 and 19 of the Act. The
Authority on the other hand is established under Section 20 of
the Act and derives its powers from Section 31. The functions of
the Authority are contained in Section 34 which provides inter
alias the functions of registering and regulating Real Estate
Projects and Real Estate agents under the Act.
thus, submitted that even assuming that the project is one
which needs to be registered, the issue of registration would
frst require determination by the Authority before the
Adjudicating Offcer could take cognizance of the same. He has
submitted that bifurcation between the scope of powers of the
Authority and Adjudicating Offcer has also been acknowledged
by this Court in Lavasa Corporation Ltd. Vs. Jitendra Jagdish
Tulsiani & Ors.9.
34. The learned Senior Counsel has submitted
that the Adjudicating Offcer had failed to appreciate that the
Second Complaint was barred by the principles of res judicata.
He has submitted that the Complainants had already fled the
9 (2018) 5 AIR Bom R 553; Paras 76-79
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First Complaint before the Authority inter alia seeking
compensation from the Petitioners on account of alleged delay
in handing over the fat along with directions against the
Petitioners to register the project. This was dismissed by the
Authority vide its order dated 18th December 2017 on the
count that since part occupancy certifcate had already been
received for that part of the building in which the fat is located,
there was no question of registering the same. The order had
been consistent with the fndings rendered by the Full Bench of
MahaRERA in the case of Mr. Prasad Patkar (supra). The
Authority’s order dated 18th December 2017 had attained
fnality, as the Complainants herein had not pursued any
appeal challenging the same. The Complainants herein along
with the certain other fat purchasers in the project had fled
Writ Petition (L) No. 2639 of 2018 before this Court inter alia
seeking various reliefs in respect of the project, including but
not limited to cancellation of the part occupancy certifcate and
directions to the Petitioners to register the project with the
Authority. This Court dismissed the Writ Petition vide its
judgment dated 16th October 2018 subject to certain direction
issued in paragraph 24 of the judgment directing MMRDA to
supervise further work to be undertaken in respect of the
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project.
35. The learned Senior Counsel has submitted
that the Respondents have incorrectly sought to fle the second
complaint, in view of the order passed in Haresh Asher’s case
(supra). This despite having accepted the settled position that
the phase of the project in which they purchased the fat did not
require to be registered. He has submitted that the ruling of the
Authority in Haresh Asher’s case (supra) proceeded on an
erroneous appreciation of the order of this Court dated 31st
July 2018 in the matter of Mohammed Zain Khan Vs.
Maharashtra Real Estate Regulatory Authority & Ors.10. This
Court in that matter was concerned with a project which
required to be registered and had not been registered. It is in no
way relevant to the present case where the phase of the project
does not require registration in the frst place. He has
submitted that in view of the principles of res judicata as
enshrined in Section 11 of the CPC read with Explanation VIII
thereof, the Adjudicating Offcer could not have entertained the
Second Complaint in the frst place and therefore, ought to have
dismissed it at the very threshold itself. He has placed reliance
10 Writ Petition (L) No. 908 of 2018
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on the decision of the Supreme Court in the case of Sulochana
Amma Vs. Narayanan Nair11. He has submitted that even in
respect of this Court’s judgment dated 16th October 2018
whereby Writ Petition (L) No. 2639 of 2018 is disposed of
without directing the Petitioners to register the project, the
principle of res judicata would very much apply. In this
context, he has placed reliance on the decision of the Supreme
Court in Virudhunagar Steel Rolling Mills Ltd. Vs. Government
of Madras12, which has categorically held that the principle of
res judicata would also be applicable in cases where inter alia
Writ Petitions have been disposed of with a speaking order. He
has submitted that this Petition fled under Article 226 of the
Constitution of India is maintainable as it raises issues with
regard to error of jurisdiction exercised by the Adjudicating
Offcer in entertaining the Second Complaint in stark
derogation to orders passed by the Authority on the same issue.
He has relied upon the decisions of the Supreme Court in
Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai
& Ors.13, Kamal K. Singh Vs. Union of India 14 in this context.
11 (1994) 2 SCC 14 para 5-7

12 AIR 1968 SC 1196
13 (1998) 8 SCC 1
14 2019 SCC Online Bom 5609
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Accordingly, the present Petition be allowed and the impugned
order be quashed and setting aside.
36. Mr. Mayur Khandeparkar, the learned
Counsel appearing on behalf of Respondent Nos. 2 and 3
/Respondents / Complainants has submitted that the present
Petition is not maintainable as it impugns the order dated 31st
December 2020 passed by the Adjudicating Offcer of
MahaRERA. The aspect in relation to jurisdiction having been
raised and decided by the Adjudicating Offcer. Once there was
such adjudication of the jurisdiction, this Court ought not to
have exercised jurisdiction under Article 226/227 especially
when there exists a statutory remedy in that regard. He has
submitted that this Court in PIL-CJ-LD-VC No. 25 of 2020 held
that the Act is a complete code in itself and Section 44 provides
a remedy of appeal to any person aggrieved against any order
or direction or decision of the Authority (or Adjudicating
Offcer) before the Appellate Tribunal and the Chairman of such
Tribunal shall have been a Judge of this High Court. Thus, there
is an alternate effcacious remedy under Section 44 of the
RERA and hence, the Writ Petition deserves to be dismissed in
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limine by relegating parties to recourse of the statutory
remedy. He has submitted that the Petitioners cannot be
permitted to bypass the procedure prescribed in the Act and
approach this Court in writ jurisdiction. In this context, he has
relied upon the decision of the Supreme Court in case of
Assistant Commissioner (CT) LTU, Kakinada & Ors. Vs. Glaxo
Smith Kline Consumer Health Care Limited15.
37. The learned Counsel for the Respondents /
Complainants has submitted that the principles of res judicata
are inapplicable in the present case. The First Complaint was
rejected vide order dated 18th December 2017 only on the issue
of maintainability. There was no fnding rendered on the merits
of the dispute between the Petitioners and Respondents nor
there was any adjudication or determination of the rights of
either party in the said order. He has submitted that in the
Haresh Asher case (supra), the learned Member and
Adjudicating Offcer vide order dated 12th September 2018 and
the Appellate Tribunal by its order dated 25th October 2018
inter alia held that the Petitioners are required to register the
project under the Act and upheld the order passed by the
15 2020 SCC OnLine SC 440
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Adjudicating Offcer holding that MahaRERA has jurisdiction
over the said project. He has submitted that the Petitioners had
fled a Second Appeal being Second Appeal No. 708 of 2018
before this Court challenging the order dated 25th October
2018 passed by the Maharashtra Real Estate Appellate
Tribunal which was subsequently withdrawn upon payment of
costs Rs. 2,00,000/-. Hence, the order dated 25th October 2018
of the Appellate Authority has attained fnality in the context of
registration of the project and the Petitioners are bound to
comply with the said order and register the project under the
Act. He has submitted that as there is a subsequent declaration
of law in respect of registration of the project, there cannot be
estoppel or res judicata in regard to such declaration of law. He
has placed reliance Mathura Prasad Bajoo Jaiswal & Ors. Vs.
Dossibai N. B. Jeejeebhoy16 and Isabella Johnson (Smt.) Vs.
M.A. Susai (Dead) By LRs.17. He has submitted in view of the
order dated 25th October 2018 having attained fnality, the
order of the Full Bench dated 17th November 2017 is impliedly
overruled and the Petitioners are bound to register the project
under the Act and complaints against the project are held to be
16 1970(1) SCC 613

17 (1991)1 SCC 494
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maintainable.
38. The learned Counsel for Respondents /
Complainants has then referred to the relevant provisions of
the Act, in particular, Section 3 of the Act read with the
defnition of completion certifcate in Section 2(q) of the Act. He
has submitted that from reading of frst proviso to Sub-Section
1 of Section 3, it is clear that this provision only applies to
applications to be made for registration and this provision
cannot give a go by to Sub-Section 2 of Section 3 which contains
a non-obstinate clause and thus, means that only the projects
which fall in the exceptions set out in that sub-section shall be
exempt from registration. Sub-Clause b of Sub-Section 2 of
Section 3 makes it abundantly clear that a Real Estate Project
that has received a completion certifcate for the “Real Estate
Project” prior to commencement of the Act (1st May 2017)
would be exempt from registration. Therefore, the contention of
the Petitioners that part occupancy certifcate obtained after
commencement of the Act which exempts registration is ex-
facie contrary to the plain language of the provisions.
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Complainants has submitted that occupancy certifcate is
defned in Section 2(zf) of the Act, whereas completion
certifcate is defned in Section 2(q) of the Act. He has
submitted that from the reading of these defnitions, “part
occupancy certifcate” is not analogues to “completion
certifcate”. He has drawn reference to Rule 4 of the
Registration Rules and Explanation (ii) of Sub-Rule 1 of Rule 4
in particular. He has also relied upon Regulations 6(6), 6(7)
and 6(8), of the Development Control Regulations for Greater
Bombay, 1991. He has also drawn reference to certain
defnitions of Real Estate Project in Section 2(zn), the
development works in Section 2(t), and internal development
in Sub-Section 2(zb), common area in Section 2(n). He has
submitted that the Petitioner has only secured a part
occupancy certifcate (for 40 foors) on 8th June 2017 much
after the date of commencement of the Act (1st May 2017). It
is to be submitted that it is only at this stage of grant of full
occupancy certifcate that the Planning Authority grants
permission in context of completion of the entire development
work. He has submitted that Rule 4 of the Registration Rules
applies only to ongoing Real Estate Project in which “all
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buildings as per sanction plan have not received occupation
certifcate or completion certifcate”. In the present case, the
expression “all buildings” would not include a part of a building
as the legislative intent is clear by use of the expression “all
buildings”. In such a situation, the promoter of an ongoing
project has an option to register each of such buildings as a
phase. However, such registration of a building or buildings in a
project will have to necessarily be of the entire building and not
any part thereof. This fact is clarifed by Explanation (i) of
Regulation 4.
Complainants has submitted that the mandate under the frst
proviso of sub Section (1) of Section (3) would be that if a
project does not possess “a completion certifcate” as on date of
“commencement of the act” then such project is required to be
registered under the provisions of the Act. He has submitted
that on the date of commencement of the Act i.e. on 1 st May,
2017, the Petitioners did not have an Occupation Certifcate or
Completion Certifcate. This is a position even as of today and
hence the project which is an “ongoing project” is required to be
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registered. He has further submitted that although the scheme
of the act permits the registration of Real Estate Projects in
phases, with respect to the ongoing projects such phase can be
only the entire building and cannot be a part thereof.
Complainants has submitted that Rule 3 of the Registration
Rules covers “new projects”, whereas Rule 4 of the Registration
Rules covers “on going projects”. In the explanation ‘I’ to Rule 4
for the purpose of ongoing projects the phases of the project
has been defned as the expression “phase of the project”
means the building or buildings in a project of which the
occupancy or completion certifcate has not been received”. He
has submitted that from a reading of the explanation of ongoing
projects, a phase of the project can only consist of a building
and multiple buildings. He has accordingly submitted that Rule
2(P) of the Registration Rules does not apply to ongoing
projects and it is thus impermissible to register only a defned
number of foors of the building as a phase of an ongoing
project. For an ongoing project, the obligation is occurred on
the date of the Act coming into force and only a time period is
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prescribed for compliance. He has submitted that the mere
obtaining of a part occupancy certifcate in respect of an
ongoing project is of no consequence and relevance to the
obligation for registration of the project. A part occupancy
certifcate cannot be equated to a completion certifcate. He
has submitted that in any event the part occupancy Certifcate
dated 8th June 2017 issued in the present case is a conditional
Certifcate which itself shows that the work in respect of the
portion of the building to which it relates is incomplete. Clause
6 of the part occupancy Certifcate requires the applicant to
complete unfnished internal work before applying for grant of
Full Occupancy Certifcate of the building or before handing
over of physical possession of the premises for habitation
whichever is earlier. He has submitted that in contrast a
completion certifcate would mean certifcation that the Real
Estate Project has been developed according to the sanction
plans, lay out plans and specifcations as approved by the
Competent Authority which includes completion of common
areas, external development work or internal development
work. Thus the obligation in case of an ongoing project is to
register the entire project in view of the provisions contained in
Rule 4 of the Registration Rules. It is in this context that the
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Appellate Tribunal had held that ongoing projects requires
registration under the Act vide the order dated 25 th October,
2018 passed in the Haresh Asher case (Supra). The same
having attained fnality.
Complainants has submitted that Form ‘A’ relied upon by the
learned Senior Counsel for the Petitioners is not applicable
having regard to Rule 3 (4) of the Registration Rules as the web
form is provided. He has submitted that although the circular
No.18 of the 2018 dated 17th July, 2018 required two stage
process as stipulated in part A and part B thereof, after the
judgment of this Court in the case of Mohd. Zain Khan (Supra)
a circular No.23 of 2018 was issued where under a composite
complaint was provided in relation to handling of non
registered projects. He has submitted that the learned Senior
Counsel for the Petitioners has incorrectly relied upon Sections
4(2) (l) (c) and 5(c) of the Act to contend that no completion
date can be specifed for a part of the building which has
received part occupancy certifcate. He submits that this
contention overlooks the date of completion which would be of
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the entire building which is required to be specifed as the
entire building is required to be registered. In the present case,
the Petitioners were under an obligation to register the entire
building having 43 foors and not only 3 foors.
43. Learned Counsel for Respondents /
Complainants has alternatively submitted that registration of a
project is not a condition precedent for maintaining or
entertaining a complaint / application for refund or
compensation or for interest. He has submitted that a reading
of a registration as a condition precedent would be adding a
condition which does not exist in the Act. It would be doing
violence with the act and plain language of the section. He has
submitted that Section 31 is the provision which enables any
aggrieved person to fle a complaint. There is no provision
barring fling of any complaint in case of non registered Real
Estate Project. It provides that “a person aggrieved” may fle a
complaint against the promoter and not a registered Real
Estate Project. He has submitted that a person aggrieved, can
allege breaches of Section 11 (functions and duties of the
promoter), 14 (Adherence to sanctioned plans and defect
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liability), 18 (Return of amounts and compensation to
allottees), 19 (Rights and duties of allottees) and also seek
imposition of penalties under Section 59 (Punishment for non-
registration under section 3), Section 60 (Penalty for
contravention of section 4) and 61 (Penalty for contravention
of other provisions of this Act). He has accordingly submitted
that there can be no doubt that the jurisdiction, power and
authority of the Authority and Adjudicating Offcer is not in any
manner circumcised or barred as a consequence of non
registration of a Real Estate Project. He has placed reliance
upon the decision of this Court in Neelkamal (Supra) and has
drawn reference to paragraph 132 thereof. He has submitted
that it is held in that decision, that the provisions of the Act are
retroactive. He has further referred to the proviso to sub
section (1) of Section 71, which provides for the transfer of
pending matters which fall under the ambit of Sections 12, 14,
18 and 19 fled before the consumer forum to the adjudicating
offcer. He has submitted that the fling of a complaint and
adjudication thereof are not interlinked with registration of a
project. He has submitted that merely because construction is
completed before the expiry of a period of three months will not
exclude the project from registration. He has referred to the
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decision of this Court in WP No.2255 of 2017, which was
decided along with case of Neelkamal (Supra) and this
argument was rejected. He has submitted that there cannot be
different adjudicating bodies or grievances in respect of the
same complaint. He has further relied upon paragraphs 89, 90,
124, 125 and 255 of the Neelkamal (Supra) as well as the
paragraph 29 of the Lavasa (Supra) in this context.
Complainants has further submitted that the Adjudicating
Offcer has jurisdiction to entertain the complaints in the
present case. He has drawn reference to the defnition of
Authority in Section 2 (i) of the Act as established under
Section 20 (1) of the Act. The term “Adjudicating Offcer” is
defned under Section 2 (a) which means an offcer is appointed
under Section 71(1) of the Act. He has submitted that the
authority consist of Chairperson or two whole time members
whose qualifcations are set out in Section 22 of the Act. The
Chairperson under Section 25 of the Act has administrative
powers. Under Section 29 of the Act, the meetings of the
Authority are provided for. He has submitted that from the
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scheme of the Act, it is clear that the RERA Authority has two
folds functions, one on the Administrative side and other on the
judicial / adjudicatory side. He has submitted that the functions
of the authority under Section 34 of the Act include on the
administrative side to register and regulate Real Estate
Projects and on the adjudicatory side under Section 34 (f) (g),
to enforce compliance of the obligations. Whereas a separate
power is conferred on the Adjudicating Offcer for adjudging
compensation under Sections 12, 14, 18 and 19. He has drawn
reference to sub section (1) of Section 71 of the Act, which
contemplates transfer of proceedings pending before the
Consumer Dispute Redressal Forum to the adjudicating offcer.
He has thus submitted that there is a clear bifurcation of
powers between the Authority and Adjudicating Offcer.
Complainants has relied upon the decision of the Supreme
Court in the case of Pioneer Urban Land and Infrastructure
Limited and Anr. Vs. Union of India & Ors. 18 as well as the
decision of the Single Judge of this Court in the matter of
Lavasa (Supra). He has submitted that these decisions have
18 (2019) 8 SCC 416.
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clearly held that compliance under Section 12, 14, 18 and 19 is
to be dealt with by an Adjudicating Offcer who should have
held offce rank not lower than that of the District Judge and
hence there would be proper adjudication of rights of allotees
as well as promoters as observed in Neelkamal (Supra).
Further in Pioneer (Supra) it has been held that it is the
Adjudicating Offcer that must determine that the complainant
has established default on the part of Respondents as observed
in paragraph 23 of the said decision. He has submitted that the
bifurcation between the Authority and Adjudicating Offcer is
clearly contemplated by Rules 6 and 7 of the Maharashtra Real
Estate (Regulation and Development) (Recovery of Interest,
Penalty, Compensation, Fine Payable, Forms of Complaints and
Appeal Etc.) Rules 2017 by which separate complaint forms
are prescribed.
Complainants has accordingly submitted that there is no
infrmity in the impugned order and the impugned order ought
not to be interfered with by this Court exercising writ
jurisdiction.
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47. We have considered the rival submissions. A
preliminary issue on the maintainability of this Petition has
been raised by the learned Counsel for the Respondents /
Complainants. We have noticed that this Petition has raised a
fundamental challenge to the exercise of jurisdiction by the
Adjudicating Offcer and two main issues arise which are as
under:-
(a) whether the Adjudicating Offcer had no
jurisdiction to entertain the complaint as the subject
project did not require registration in terms of Section
(3) of the Act?
(b) whether it was not within the powers of the
Adjudicating Offcer to pass orders and / or directions
pertaining to aspects of registration in terms of Section
3 read with Section 31 of the Act and whether it was
solely within the Authority’s sphere of powers to pass
the necessary orders and / or directions regarding the
registration of the project in terms of Section 3 read with
Section 31 of the Act?
48. In view of these two main issues which are
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required to be decided by this Court in writ jurisdiction, we are
of the view that the present writ petition is maintainable. It has
been observed in the decision of the Supreme Court in
Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai
& Ors19 at Paragraph 14, 15 and 20 as under:-
“14. The power to issue prerogative writs under Article

226 of the Constitution is plenary in nature and is not
limited by any other provision of the Constitution.
This power can be exercised by the High Court not
only for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari
for the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for
“any other purpose”.
15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion
to entertain or not to entertain a writ petition. But the
High Court has imposed upon itself certain
restrictions one of which is that if an effective and
effcacious remedy is available, the High Court would
not normally exercise its jurisdiction. But the
alternative remedy has been consistently held by this
Court not to operate as a bar in at least three
contingencies, namely, where the writ petition has
been fled for the enforcement of any of the
Fundamental Rights or where there has been a
violation of the principle of natural justice or where
the order or proceedings are wholly without
jurisdiction or the vires of an Act is challenged. There
is a plethora of case-law on this point but to cut down
this circle of forensic whirlpool, we would rely on
some old decisions of the evolutionary era of the
constitutional law as they still hold the feld.
19 (1998) 8 SCC 1
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20. Much water has since fown under the bridge, but there
has been no corrosive effect on these decisions which,
though old, continue to hold the feld with the result
that law as to the jurisdiction of the High Court in
entertaining a writ petition under Article 226 of the
Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case where the
authority against whom the writ is fled is shown to
have had no jurisdiction or had purported to usurp
jurisdiction without any legal foundation.”
49. Thus it has been expressly held in the said
decision that where the order or proceeding are wholly without
jurisdiction, Writ Petition is maintainable inspite of an
alternate statutory remedy. This particularly where the writ is
fled showing that the authority had no jurisdiction or had
purported to usurp jurisdiction without any legal foundation.
50. In the decision of Division Bench of this Court
in Kamal K. Singh Vs Union of India 20, paragraph 38 reads
thus:-
“38. Mr. Kadam’s arguments overlook the fact that if these

principles summarized above are attracted, the writ
cannot be refused. The writ cannot be refused only
because the party resisting the writ petition urges
that there are alternate and equally effcacious
remedies available to the petitioner approaching this
Court seeking a writ of certiorari to challenge the
20 2019 SCC Online Bom 5609.
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adverse order. As has been succinctly clarifed by the

Hon’ble Supreme Court that this writ of certiorari
goes to a Court. It may be issued at the request of
parties, but it is not a writ which can be claimed by
the parties. It is a writ which is directed or addressed
to the Court and the High Court can always issue it
once it is satisfed that the orders impugned before it
and challenged on the ground mentioned above
occasion a failure of justice. Thus, if the orders of the
Court or tribunal subordinate to this Court result or
occasion a failure of justice, then, this writ of
certiorari can always be issued. There is no question
of then refusing it merely because the opponent or
opposite party says that the person or the party
invoking this writ has an alternate and equally
effcacious remedy. That means everything that the
Court or the tribunal has done can either be condoned
or overlooked by us and thereafter the only remedy
available to parties is by way of an appeal to correct
the decision. If the decision itself has been rendered in
utter breach of the rules of procedure or in violation of
the principles of natural justice occasioning or
resulting in failure of justice, even then, the High
Court need not or cannot step in. If that is how we
approach this writ, possibly, we would frustrate and
defeat the very object and purpose of issuing it. We
have to ensure that the Court or the tribunal below
follows the settled procedure and norms devised while
rendering justice to parties. The orders and decisions
must be in accord therewith The orders and decisions
should not result in failure of justice. The bounds or
limits of jurisdiction are known to these tribunals or
courts subordinate to High Court. If the High Court is
endowed with the power to issue this writ, then, the
purpose of such endowment cannot be overlooked. It
is but the duty of the High Court to ensure that the
limits are not crossed or that the jurisdiction is not
exercised in a manner contrary to the settled cannons
of equality, fairness and justice. The very foundation
of justice is sanctity of Court proceedings and the
records. If that is totally lost, the, the High Court
should not be a mute spectator. It must step in.
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51. It is thus been held in Kamal K Singh (Supra)
that if the order of the Tribunal subordinate to this Court
results or occasions a failure of justice, then the writ of
certiorari can always be issued. The Court will not refuse it
merely because the opponent or opposite party says that the
person or the party invoking this writ has an alternate and
equally effcacious remedy.
52. Considering these decisions as well as the
issues that arise in this Petition, particularly where it has been
alleged that the Adjudicating Authority has wrongly and
prematurely exercised its jurisdiction, which exercise of
jurisdiction is in derogation to orders passed by the Authority
on this issue, we are of the view that there is no substance in
the challenge to the maintainability of this Petition and in fact
this Petition is very much maintainable.
53. In order to appreciate the interpretation of
the various provisions of the Act as well the relevant
Registration Rules, for determining whether a project which
has been issued part occupancy certifcate before the statutory
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period of registration of three months commencing from 1st
May, 2017 comes to an end, would not be required to be
registered under the Act and Registration Rules therein,
Sections 2(j), 2(q), 2(zj), 2(zn), 3, 4 and 5, Sections 12, 14, 18,
19, 31, 34, 59 and 71 of the Act and Rule 2(p) read with Rule 4
of the Registration Rules are relevant. They read as under:-
“Section 2(j) defnes “building’” includes any

structure or erection or part of a structure or
erection which is intended to be used for residential,
commercial or for the purpose of any business,
occupation, profession or trade, or for any other
related purposes;
Section 2(q) defnes “completion certifcate” means

the completion certifcate, or such other certifcate,
by whatever name called, issued by the competent
authority certifying that the real estate project has
been development according to the sanctioned plan,
layout plan and specifcations, as approved by the
competent authority under the local laws;
Section 2(zj) defnes “project” means the Real

Estate Project as defned in clause (zn);
Section 2(zn) defnes “real estate project” means

the development of a building or a building
consisting of apartments, or converting an existing
building or a part thereof into apartments, or the
development of land into plots or apartment, as the
case may be, for the purpose of selling all or some of
the said apartments or plots or building, as the case
may be, and includes the common areas, the
development works, all improvements and
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structures thereon, and all easement, rights and

appurtenance belonging thereto;
Section 3 : Prior registration of real estate project

with Real Estate Regulatory Authority.- (1) No
promoter shall advertise, market, book, sell or offer
for sale, or invite persons to purchase in any
manner any plot, apartment or building, as the case
may be, in any real estate project or part of it, in
any planning area, without registering the real
estate project with the Real Estate Regulatory
Authority established under this Act:
Provided that projects that are ongoing on the date
of commencement of this Act and for which the
completion certifcate has not been issued, the
promoter shall make an application to the
Authority for registration of the said project within
a period of three months from the date of
commencement of this Act:
Provided further that if the Authority thinks
necessary, in the interest of allottees, for projects
which are developed beyond the planning area but
with the requisite permission of the local authority,
it may, by order, direct the promoter of such project
to register with the Authority, and the provisions of
this Act or the rules and regulations made
thereunder, shall apply to such projects from that
stage of registration.
(2) Notwithstanding anything contained in sub-
section (1), no registration of the real estate project
shall be required—
(a) where the area of land proposed to be developed
does not exceed fve hundred square meters or the
number of apartments proposed to be developed
does not exceed eight inclusive of all phases:
Provided that, if the appropriate Government
considers it necessary, it may, reduce the threshold
below fve hundred square meters or eight
apartments, as the case may be, inclusive of all
phases, for exemption from registration under this
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Act;
(b) where the promoter has received completion
certifcate for a real estate project prior to
commencement of this Act;
(c) for the purpose of renovation or repair or re-
development which does not involve marketing,
advertising selling or new allotment of any
apartment, plot or building, as the case may be,
under the real estate project.
Explanation.—For the purpose of this section, where
the real estate project is to be developed in phases,
every such phase shall be considered a stand alone
real estate project, and the promoter shall obtain
registration under this Act for each phase
separately.
Section 4 : Application for registration of real estate

project.- (1) Every promoter shall make an
application to the Authority for registration of the
real estate project in such form, manner, within
such time and accompanied by such fee as may be
[prescribed].
(2) The promoter shall enclose the following
documents along with the application referred to in
sub-section (1), namely:—
(a) a brief details of his enterprise including its
name, registered address, type of enterprise
(proprietorship, societies, partnership, companies,
competent authority), and the particulars of
registration, and the names and photographs of the
promoter;
(b) a brief detail of the projects launched by him, in
the past fve years, whether already completed or
being developed, as the case may be, including the
current status of the said projects, any delay in its
completion, details of cases pending, details of type
of land and payments pending;
(c) an authenticated copy of the approvals and
commencement certifcate from the competent
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authority obtained in accordance with the laws as

may be applicable for the real estate project
mentioned in the application, and where the project
is proposed to be developed in phases, an
authenticated copy of the approvals and
commencement certifcate from the competent
authority for each of such phases;
(d) the sanctioned plan, layout plan and
specifcations of the proposed project or the phase
thereof, and the whole project as sanctioned by the
competent authority;
(e) the plan of development works to be executed in
the proposed project and the proposed facilities to
be provided thereof including fre fghting facilities,
drinking water facilities, emergency evacuation
services, use of renewable energy;
(f) the location details of the project, with clear
demarcation of land dedicated for the project along
with its boundaries including the latitude and
longitude of the end points of the project;
(g) proforma of the allotment letter, agreement for
sale, and the conveyance deed proposed to be
signed with the allottees;
(h) the number, type and the carpet area of
apartments for sale in the project along with the
area of the exclusive balcony or verandah areas and
the exclusive open terrace areas appurtenant with
the apartment, if any;
(i) the number and area of garage for sale in the
project;
(j) the names and addresses of his real estate
agents, if any, for the proposed project;
(k) the names and addresses of the contractors,
architect, structural engineer, if any and other
persons concerned with the development of the
proposed project;
(l) a declaration, supported by an affdavit, which
shall be signed by the promoter or any person
authorised by the promoter, stating:—
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(A) that he has a legal title to the land on which the

development is proposed along with legally valid
documents with authentication of such title, if such
land is owned by another person;
(B) that the land is free from all encumbrances, or
as the case may be details of the encumbrances on
such land including any rights, title, interest or
name of any party in or over such land along with
details;
(C) the time period within which he undertakes to
complete the project or phase thereof, as the case
may be;
(D) that seventy per cent. of the amounts realised
for the real estate project from the allottees, from
time to time, shall be deposited in a separate
account to be maintained in a scheduled bank to
cover the cost of construction and the land cost and
shall be used only for that purpose:
Provided that the promoter shall withdraw the
amounts from the separate account, to cover the
cost of the project, in proportion to the percentage
of completion of the project:
Provided further that the amounts from the
separate account shall be withdrawn by the
promoter after it is certifed by an engineer, an
architect and a chartered accountant in practice
that the withdrawal is in proportion to the
percentage of completion of the project:
Provided also that the promoter shall get his
accounts audited within six months after the end of
every fnancial year by a chartered accountant in
practice, and shall produce a statement of accounts
duly certifed and signed by such chartered
accountant and it shall be verifed during the audit
that the amounts collected for a particular project
have been utilised for that project and the
withdrawal has been in compliance with the
proportion to the percentage of completion of the
project.
Explanation.—For the purpose of this clause, the
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term “scheduled bank” means a bank included in

the Second Scheduled to the Reserve Bank of India
Act, 1934 (2 of 1934);
(E) that he shall take all the pending approvals on
time, from the competent authorities;
(F) that he has furnished such other documents as
may be prescribed by the rules or regulations made
under this Act; and
(m) such other information and documents as may
be prescribed.
(3) The Authority shall operationalise a web based
online system for submitting applications for
registration of projects within a period of one year
from the date of its establishment.
Section 5 : Grant of registration.- (1) On receipt of
the application under sub-section (1) of section 4,
the Authority shall within a period of thirty days-
(a) grant registration subject to the provisions of
this Act and the rules and regulations made
thereunder, and provide a registration number,
including a Login Id and password to the applicant
for accessing the website of the Authority and to
create his web page and to fll therein the details of
the proposed project; or
(b) reject the application for reasons to be recorded
in writing, if such application does not conform to
the provisions of this Act or the rules or regulations
made thereunder:
Provided that no application shall be rejected unless
the applicant has been given an opportunity of
being heard in the matter.
(2) If the Authority fails to grant the registration or
reject the application, as the case may be, as
provided under sub-section (1), the project shall be
deemed to have been registered, and the Authority
shall within a period of seven days of the expiry of
the said period of thirty days specifed under sub-
section (1), provide a registration number and a
Login Id and password to the promoter for
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accessing the website of the Authority and to create

his web page and to fll therein the details of the
proposed project.
(3) The registration granted under this section
shall be valid for a period declared by the promoter
under sub-clause (C) of clause (l) of sub-section (2)
of section 4 for completion of the project or phase
thereof, as the case may be.
Section 12. Obligations of promoter regarding

veracity of the advertisement or prospectus:-
Where any person makes an advance or a deposit
on the basis of the information contained in the
notice advertisement or prospectus, or on the basis
of any model apartment, plot or building, as the
case may be, and sustains any loss or damage by
reason or any incorrect, false statement included
therein, he shall be compensated by the promoter in
the manner as provided under this Act.
Provided that if the person affected by such
incorrect, false statement contained in the notice,
advertisement or prospectus, or the model
apartment, plot or building as the case may be,
intends to withdraw from the proposed project, he
shall be returned his entire investment along with
interest at such rate as may be prescribed and the
compensation in the manner provided under this
Act.
Section 14. Adherence to sanctioned plans and

project specifcations by the promoter
(1) The proposed project shall be developed and
completed by the promoter in accordance with the
sanctioned plans, layout plans and specifcations as
approved by the competent authorities.
(2) Notwithstanding anything contained in any law,

contract or agreement, after the sanctioned plans,
layout plans and specifcations and the nature of
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the fxtures, fttings, amenities and common areas,

of the apartment, plot or building, as the case may
be, as approved by the competent authority, are
disclosed or furnished to the person who agree to
take one or more of the said apartment, plot or
building, as the case may be, the promoter shall not
make--
(i) any additions and alterations in the sanctioned

plans, layout plans and specifcations and the
nature of fxtures, fttings and amenities described
therein in respect of the apartment, plot or building,
as the case may be, which are agreed to be taken,
without the previous consent of that person:
Provided that the promoter may make such minor

additions or alterations as may be required by the
allottee, or such minor changes or alterations as
may be necessary due to architectural and
structural reasons duly recommended and verifed
by an authorised Architect or Engineer after proper
declaration and intimation to the allottee.
Explanation.- For the purpose of this clause, “minor
additions or alterations” excludes structural change
including an addition to the area or change in
height, or the removal of part of a building or any
change to the structure, such as the construction or
removal or cutting into of any wall or a part of a
wall, partition, column, beam, joist, foor including a
mezzanine foor or other support, or a change to the
fxtures or equipment, etc.
(ii) any other alterations or additions in the
sanctioned plans, layout plans and specifcations of
the buildings or the common areas within the
project without the previous written consent of
atleast two-thirds of the allottees, other than the
promoter, who have agreed to take apartments in
such building.
Explanation.- For the purpose of this clause, the
allottees, irrespective of the number of apartments
or plots, as the case may be, booked by him or
booked in the name of his family, or in the case of
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other persons such as companies or frms or any

association of individuals, etc., by whatever name
called, booked in its name or booked in the name of
its associated entities or related enterprises, shall
be considered as one allottee only.
(3) In case any structural defect or any other defect
in workmanship, quality or provision of services or
any other obligations of the promoter as per the
agreement for sale relating to such development is
brought to the notice of the promoter within a
period of fve years by the allottee from the date of
handing over possession, it shall be the duty of the
promoter to rectify such defects without further
charge, within thirty days, and in the event of
promoter’s failure to rectify such defects within
such time, the aggrieved allottees shall be entitled
to receive appropriate compensation in the manner
as provided under this Act.
Section 18 : Return of amount and compensation;

(1) If the promoter fails to complete or is unable to
give possession of an apartment, plot or building,--
(a) in accordance with the terms of the agreement

for sale or, as the case may be, duly
completed by the date specifed therein; or
(b) due to discontinuance of his business as a

developer on account of suspension or revocation of
the registration under this Act or for any other
reason, he shall be liable on demand to the allottees,
in case the allottee wishes to withdraw from the
project, without prejudice to any other remedy
available, to return the amount received by him in
respect of that apartment, plot, building, as the case
may be, with interest at such rate as may be
prescribed in this behalf including compensation in
the manner as provided under this Act:
Provided that where an allottee does not intend

to withdraw from the project, he shall be paid, by
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the promoter, interest for every month of delay, till

the handing over of the possession, at such rate
as may be prescribed.
(2) The promoter shall compensate the allottees in
case of any loss caused to him due to defective title
of the land, on which the project is being developed
or has been developed, in the manner as provided
under this Act, and the claim for compensation
under this subsection shall not be barred by
limitation provided under any law for the time
being in force.
(3) If the promoter fails to discharge any other
obligations imposed on him under this Act or the
rules or regulations made thereunder or in
accordance with the terms and conditions of the
agreement for sale, he shall be liable to pay such
compensation to the allottees, in the manner as
provided under this Act.
Section 19 : Rights and duties of allottees.- (1) The

allottee shall be entitled to obtain the information
relating to sanctioned plans, layout plans along with
the specifcations, approved by the competent
authority and such other information as provided
in this Act or the rules and regulations made
thereunder or the agreement for sale signed with
the promoters.
(2) The allottee shall be entitled to know stage-wise

time schedule of completion of the project, including
the provisions for water, sanitation, electricity and
other amenities and services as agreed to between
the promoter and the allottee in accordance with the
terms and conditions of the agreement for sale.
(3) The allottee shall be entitled to claim the

possession of apartment, plot or building, as the
case may be, and the association of allottees shall be
entitled to claim the possession of the common
areas, as per the declaration given by the promoter
under sub-clause (C) of clause (I) of sub-section (2)
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of section 4.
(4) The allottee shall be entitled to claim the refund
of amount paid along with interest at such rate as
may be prescribed and compensation in the manner
as provided under this Act, from the promoter, if
the promoter fails to comply or is unable to give
possession of the apartment, plot or building, as the
case may be, in accordance with the terms of
agreement for sale or due to discontinuance of his
business as a developer on account of suspension or
revocation of his registration under the provisions
of this Act or the rules or regulations made
thereunder.
(5) The allottee shall be entitled to have the

necessary documents and plans, including that of
common areas, after handing over the physical
possession of the apartment or plot or building as
the case may be, by the promoter.
(6) Every allottee, who has entered into an
agreement for sale to take an apartment, plot or
building as the case may be, under section 13, shall
be responsible to make necessary payments in the
manner and within the time as specifed in the
said agreement for sale and shall pay at the proper
time and place, the share of the registration
charges, municipal taxes, water and electricity
charges, maintenance charges, ground rent, and
other charges, if any.
(7) The allottee shall be liable to pay interest, at
such rate as may be prescribed, for any delay in
payment towards any amount or charges to be paid
under sub-section (6).
(8) The obligations of the allottee under sub-section
(6) and the liability towards interest under sub-
section (7) may be reduced when mutually agreed
to between the promoter and such allottee.
(9) Every allottee of the apartment, plot or building

as the case may be, shall participate towards the
formation of an association or society or
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cooperative society of the allottees, or a federation

of the same.
(10) Every allottee shall take physical possession of
the apartment, plot or building as the case may be,
within a period of two months of the occupancy
certifcate issued for the said apartment, plot or
building, as the case may be.
(11) Every allottee shall participate towards
registration of the conveyance deed of the
apartment, plot or building, as the case may be, as
provided under sub-section (1) of section 17 of this
Act.
Section 31 : Filing of complaints with the Authority

or the adjudicating offcer.
(1) Any aggrieved person may fle a complaint with
the Authority or the adjudicating offcer, as the case
may be, for any violation or contravention of the
provisions of this Act or the rules and regulations
made thereunder against any promoter allottee or
real estate agent, as the case may be.
Explanation.-- For the purpose of this sub-section
"person" shall include the association of allottees or
any voluntary consumer association registered
under any law for the time being in force.
(2) The form, manner and fees for fling

complaint under sub-section (1) shall be
such as may be specifed by regulations.]
Section 34 : Functions of Authority

The functions of the Authority shall include--
(a) to register and regulate real estate projects and

real estate agents registered under this Act;
(b) to publish and maintain a website of records, for

public viewing, of all real estate projects for which
registration has been given, with such details as
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may be prescribed, including information provided

in the application for which registration has been
granted;
(c) to maintain a database, on its website, for public

viewing, and enter the names and photographs of
promoters as defaulters including the project
details, registration for which has been revoked or
have been penalised under this Act, with reasons
therefor, for access to the general public;
(d) to maintain a database, on its website, for public

viewing, and enter the names and photographs
of real estate agents who have applied and
registered under this Act, with such details as may
be prescribed, Including those whose
registration has been rejected or revoked;
(e) to fx through regulations for each areas under
its jurisdiction the standard fees to be levied on
the allottees or the promoter or the real estate
agent, as the case may be;
(f) to ensure compliance of the obligations cast upon
the promoters, the allottees and the real
estate agents under this Act and the rules
and regulations made thereunder;
(g) to ensure compliance of its regulations
or orders or directions made in exercise of its
powers under this Act;
(h) to perform such other functions as may be
entrusted to the Authority by the appropriate
Government as may be necessary to carry out the
provisions of this Act.]
Section 59 : Punishment for non-registration under

section 3.- (1) If any promoter contravenes the
provisions of section 3, he shall be liable to a
penalty which may extend up to ten per cent of the
estimated cost of the real estate project as
determined by the Authority.
(2) If any promoter does not comply with the
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orders, decisions or directions issued under sub-

section (1) or continues to violate the provisions of
section 3, he shall be punishable with imprisonment
for a term which may extend up to three years or
with fne which may extend up to a further ten per
cent. Of the estimated cost of the real estate project,
or with both.
Section 71 : Power to adjudicate;

(1) For the purpose of adjudging compensation
under sections 12, 14, 18 and section 19, the
Authority shall appoint, in consultation with the
appropriate Government, one or more judicial
offcer as deemed necessary, who is or has been a
District Judge to be an adjudicating offcer for
holding an inquiry in the prescribed manner, after
giving any person concerned a reasonable
opportunity of being heard:
Provided that any person whose complaint in
respect of matters covered under sections 12, 14,
18 and section 19 is pending before the Consumer
Disputes Redressal Forum or the Consumer
Disputes Redressal Commission or the National
Consumer Redressal Commission, established
under section 9 of the Consumer Protection Act,
1986 (68 of 1986), on or before the commencement
of this Act, he may, with the permission of such
Forum or Commission, as the case may be,
withdraw the complaint pending before it and fle an
application before the adjudicating offcer under
this Act.
(2) The application for adjudging compensation
under sub-section (1), shall be dealt with by the
adjudicating offcer as expeditiously as possible and
dispose of the same within a period of sixty days
from the date of receipt of the application:
Provided that where any such application could not
be disposed of within the said period of sixty days,
the adjudicating offcer shall record his reasons in
writing for not disposing of the application within
that period.
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(3) While holding an inquiry the adjudicating offcer

shall have power to summon and enforce the
attendance of any person acquainted with the facts
and circumstances of the case to give evidence or to
produce any document which in the opinion of the
adjudicating offcer, may be useful for or relevant to
the subject matter of the inquiry and if, on such
inquiry, he is satisfed that the person has failed to
comply with the provisions of any of the sections
specifed in sub-section (1), he may direct to pay
such compensation or interest, as the case any be,
as he thinks ft in accordance with the provisions of
any of those sections.
Relevant Registration Rules :

Rule 2 (p) :-
“Phase of a Real Estate Project” may consist of a
building or a wing of the building in case of building
with multiple wings or defned number of foors in a
multi-storeyed building/wing;
Rule 4 : Disclosure by promoter of ongoing real
estate projects
(1) The promoter of an ongoing real estate project,
in which all buildings as per sanctioned plan have
not received occupancy certifcate or completion
certifcate, as the case may be, as provided by
clause (b) of sub-section (2) of section 3, shall be
required to submit application for registration for
each such phase of the project, within a period of
three months from the date of commencement of
section 3.
Explanation.- For the purpose of this sub-rule,-
(I) the expression “phase of the project” means
the building or buildings in a project in respect of
which occupancy or completion certifcate has not
been received;
(II) the term “completion certifcate” shall mean
such building permission or certifcate, by whatever
name called, which is issued by the competent
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authority by or under the provisions of

Maharashtra Regional Town Planning Act, 1966 or
any other law for the time being in force, in
accordance with which the permission for
development has been granted.
(2) The Promoter shall disclose all details of
ongoing real estate project as required under sub-
section (1) and (2) of section 4 and Rule 3 including
the extent of development carried out till the date
of application for registration under sub-rule (1), as
per the last approved sanctioned plan of the project
and the extent of development of common areas,
amenities etc. completed in respect of buildings
along with expected period of completion of the on-
going real estate project. The promoter shall also
disclosed the original time period disclosed to the
allottees, for completion of the project at the time of
sale including the delay and the time period within
which he undertakes to complete the pending
project, which shall be commensurate with the
extent of development already completed. The
Promoter shall submit a certifcate from the
practicing project Architect certifying the
percentage of completion of construction work of
each of the building/wing of the project, a certifcate
from the Engineer for the estimated balance cost to
complete the construction work of each of the
building/wing of the project, and a certifcate from a
practicing Chartered Accountant, for the estimated
balance cost to compete the project. The promoter
shall submit a certifcate from a practicing
Chartered Accountant, certifying the balance
amount of receivables from the
apartments/fats/premises sold or allotted and in
respect of which agreement have been executed
and estimated amount of receivables in respect of
unsold apartments/fats/premises calculated at the
prevailing ASR rate on the date of certifcate.
(3) (a) The Promoter shall disclose the number of
the apartments sold or allotted to the allottees and
further disclose the size of the apartment based on
carpet area even if such apartments are sold earlier
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on any other basis, such as super area, su0per built-

up area etc.
(b) In case of plotted development, the promoter
shall disclose the are of the plots sold to the
allottees including extent of share of common areas
and amenities etc.
(4) The Promoter shall construct and develop real
estate project in accordance with the sanctioned
plan, and layout plans and specifcations as
approved by the Competent Authorities:
Provided that, the promoter developing a real
estate project will be entitled to aggregate any
contiguous land parcel through acquisition of
ownership and title or by receiving development
permission, including for re-development project
and thereupon may also obtain phase-wise
approvals from the relevant competent authorities
to sanctioned plan under applicable laws, rules and
regulations:
Provided further that, at the end of ninety days
from the date of notifcation of section 3 of the Act,
the promoter shall not advertise, market, book, sell
or offer for sale or invite persons to purchase in any
manner any plot, apartment or building respect of
such land parcel unless he registers such
independent phase as a separate real estate project
within the meaning of clause (c) of the Explanation
to section 3:
Provided also that, previous written consent of least
two-third of the allottees may not be necessary for
implementation of the proposed plans/specifcations
as disclosed in agreement executed with the allottee
prior to registration or for any alterations or
additions or modifcations in the sanctioned plans,
layout plans and specifcations of the buildings or
common areas in the Real Estate Project which are
required to be made by promoter in compliance of
any directions or order, etc. issued by, the
competent authority or statutory authority, under
any law of the State or Central Government, for the
time being in force.
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54. It would appear from the defnition of
‘building’ in Section 2(j), that a building includes a part of
structure or erection which is intended to be used for
residential or commercial purposes. Further, from the
defnition of project and Real Estate Project under Section 2(j)
and 2(zn), it is apparent that a Real Estate Project means
development of a building consisting of apartments for the
purpose of selling of some of the said apartments and includes
the common areas. It is further apparent from Rule 2(p) of the
Registration Rules which defnes phase of a Real Estate Project,
that a phase would also consist of defned number of foors in a
multi storied building or wing. These defnitions assumes
importance in the interpretation of Section 3 of the Act. From
the opening of Section (3) (1), the disability resulting from a
failure to register has been provided and which is that a
promoter shall not advertise, market, book, sell or offer for sell
any building or apartment or any part of it in any Real Estate
Project without registering the Real Estate Project with the
authority. Thereafter in the frst proviso in Section 3 (i) it is
stated that the projects which are ongoing on the date of
commencement of the Act, and for which the completion
certifcate has not be issued, the promoter shall make an
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application to the Authority for registration of the project
within a period of three months from the date of
commencement of the Act. Thus, there is a window created of
three months from the date of commencement of the Act. (read
as three months from the date of commencement of Section 3
as per Rule 4 (1) of the Registration Rules). Under Section 3(2)
there is a non-obstantive clause which provides circumstances
where no registration of a Real Estate Project shall be required.
Section 3(2) (b) indicates one such circumstance, that is where
the project has received completion certifcate for a Real Estate
Project prior to the commencement of the Act. The Explanation
in Section 3 is relevant and which says that for the purpose of
this Section, where the Real Estate Project is to be developed in
phases, every such phase shall be considered as a stand alone
Real Estate Project and the promoter shall obtain registration
under this Act for each phase separately. Section 4(2) (i)
throws light on the interpretation of Section 3 as it provides for
a declaration to be submitted by the Promoter supported by an
Affdavit stating the time period within which it undertakes to
complete the project or phase thereof as the case may be.
Section 5(3) states that registration granted under the Section
shall be valid for the period declared by the promoter under
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Section 4(2) (1) (c) for completion of the project or phase
thereof.
55. Thus, from the plain language of Section 3(1)
it is clear that registration must be in respect of any Real
Estate Project or part of it. The window of three months in the
frst proviso of Section (3) (1) makes it clear that in so far as
ongoing projects are concerned, the promoter has been given
the said window of three months within which he can apply for
registration of the said ongoing project. The ongoing project
would be a Real Estate Project and / or a phase of the project
which would require registration during the three months
window after the commencement of Section 3 of the Act i.e. 1st
May 2017. Section 3(2) (b) would apply only to completed
projects that have received the completion certifcate before
the commencement of the Act and thus entitled to exemption
from registration. Thus there is a clear distinction made
between the projects ‘that are ongoing projects’ and ‘projects
which have received completion certifcate before
commencement of the Act’. The Real Estate Project or part of it
which receives a part occupancy certifcate during the three
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month window denotes its completion and upon completion
would not require to be registered. There is no substance in the
submission of the learned Counsel for the Respondents /
Complainants that the part occupancy certifcate issued in the
present case did not denote completion of that phase of the
project and was only a conditional part occupancy certifcate.
We accept the submission of the learned Senior Counsel for the
Petitioners that the scope of the proviso to Section 3 (1) and
Section 3 (2) (b) can never be the same or overlapping and that
would amount to or attributing surplusage to legislature which
could never have been the intention.
56. Under Rule 4 (1), the promoter of the ongoing
Real Estate Project, where all building as per sanction plan
have not received occupancy certifcate or completion
certifcate, as the case may be, prior to the commencement of
the Act as provided by sub-Section 2 (b) of Section 3 is required
to submit an application for registration for each such phase of
the project within a period of three months from the date of
commencement certifcate of Section 3. Thus, the words ‘each
such phase of the project’ would include a building or part
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thereof i.e. number of foors in a multi-storey building / wing.
This cannot be given a restricted meaning as ‘entire building’ as
sought to be contended by the learned Counsel for the
Respondents / Complainants.
57. The learned Counsel for the Respondents /
Complainants appears to have placed reliance on the
Explanation to Rule 4 (1) of the Registration Rules in support
of its interpretation of Rule 4 (1) of the Registration Rules.
According to the learned Counsel for the Respondents /
Complainants, the Explanation to Rule 4 (1) makes it clear that
for ongoing projects ‘the entire building’ would require
registration and not part of the building. However, this
interpretation would be contrary to the plain language of Rule 4
of the Registration Rules read with the Explanation to Rule
4(1). It is apparent therefrom that the phase of a project means
the building or buildings in a project in respect of which the
occupancy or completion certifcate has not been received. It is
clear from the defnition of building under the Act that it
includes any structure or erection or part of a structure or
erection which is intended to be used for residential,
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commercial or for the purpose of any business occupation,
profession or trade or for any other related purpose. Thus the
word ‘building’ in Rule 4 (1) and in the Explanation thereof has
to be read in conformity with the defnition of building under
the Act. Thus including a part of a building.
58. Section 3 of the Act read with Rule 4(1) of the
Registration Rules must be interpreted harmoniously with
related provisions and cannot be looked in isolation as sought
to be done by the complainants whilst interpreting Rule 4 (1) of
the Registration Rules. The decisions of the Supreme Court in
Eera through Dr. Manjula Krippendorf (Supra) and New India
Assurance Company Ltd. (Supra) relied upon by the learned
Senior Counsel for the Petitioner and which lay down the
principles of interpretation of provisions of the Act are to be
borne in mind whilst interpreting these provisions under the
Act and Registration Rules.
59. Further, the tenor of Rule 4 (2) and 4(3) in
respect of any part or phase which is registered is the making
of a disclosure of what has been completed or what is yet to be
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completed. Rule 4(4) indicates that upon registration, the
balance construction or development must be in accordance
with sanctioned plans. These Rules would have no meaning if
what is registered is a completed Real Estate Project or part or
phase, thereof which completion is evidenced by a completion
certifcate as defned in Explanation II to Section 4(1) of the
Act.
60. Learned Senior Counsel for the Petitioners
has relied upon the Authorities Website which contains the
FAQs to assist all shareholders in the understanding and
implementation of the Act and Registration Rules. The relevant
FAQ i.e. Q.11, where a specifc query has been put viz. “if
occupancy certifcate / building completion certifcate is issued
in May / June / July does the project has to be registered?” Has
been answered to the affrmative by stating that “ongoing
projects have time till 30th July to register. If before doing
registration, the project has got an occupancy certifcate /
building completion certifcate, the project has been completed
as per Section 5 (3) of the Act. Hence, it does not require
registration.” It would thus be apparent from the Authority
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under the Act that registration will not be required if the part
occupancy certifcate has been validly issued under the MR &
TP Act / DC Regulations, 1991 in respect of that part or phase
before 31st July 2017.
61. This Court in Neelkamal (Supra) has in
paragraphs 89 and 90 with respect to the analysis of the Act
has held as under:-
“89. On behalf of the petitioners it was submitted that

registration of ongoing project under RERA
would be contrary to the contractual rights os-
wp-2737-17 & ors-RERA-JT.doc established
between the promoter and allottee under the
agreement for sale executed prior to registration
under RERA. In that sense, the provisions have
retrospective or retroactive application. After
assessing, we fnd that the projects already
completed are not in any way affected and,
therefore, no vested or accrued rights are getting
affected by RERA. The RERA will apply after
getting the project registered. In that sense, the
application of RERA is prospective in nature.
What the provisions envisage is that a promoter
of a project which is not complete / sans
completion certifcate shall get the project
registered under RERA, but, while getting project
registered, promoter is entitled to prescribe a
fresh time limit for getting the remaining
development work completed. From the scheme
of RERA and the subject case laws cited above, we
do not fnd that frst proviso to Section 3(1) is
violative of Article 14 or Article 19(1)(g) of the
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Constitution of India. The Parliament is

competent to enact a law affecting the antecedent
events. In the case of State of Bombay vs. Vishnu
Ramchandra (Supra), the Apex Court observed
that the fact that part of the requisites for
operation of the statute were drawn from a time
antecedent to its passing did not make the statute
retrospective so long as the action was taken
after the Act came into force. The consequences
for breach of such obligations under RERA are
prospective in operation. In os-wp-2737-17 & ors-
RERA-JT.doc case ongoing projects, of which
completion certifcates were not obtained, were
not to be covered under RERA, then there was
likelihood of classifcations in respect of
undeveloped ongoing project and the new project
to be commenced. In view of the material
collected by the Standing Committee and the
Select Committee and as discussed on the foor of
the Parliament, it was thought ft that ongoing
project shall also be made to be registered under
RERA. The Parliament felt the need because it
was noticed that all over the country in large
number of projects the allottees did not get
possession for years together. Huge sums of
money of the allottees is locked in. Sizable section
of allottees had invested their hard earned
money, life savings, borrowed money, money
obtained through loan from various fnancial
institutions with a hope that sooner or later they
would get possession of their apartment/fat/unit.
There was no law regulating the real estate
sector, development work/obligations of promoter
and the allottee. Therefore, the Parliament
considered it to pass a central law on the subject.
During the course of hearing, it was brought to
notice that in the State of Maharashtra a law i.e.
MOFA on the subject has been in operation. But
MOFA provisions are not akin to regulatory
provisions of RERA.
90. The important provisions like Sections 3 to 19, 40,
59 to 70 and 79 to 80 were notifed for operation
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from 1/5/2017. RERA law was enacted in the year

2016. The Central Government did not make any
haste to implement these provisions at one and
the same time, but the provisions were made
applicable thoughtfully and phase-wise.
Considering the scheme of RERA, object and
purpose for which it is enacted in the larger
public interest, we do not fnd that challenge on
the ground that it violates rights of the
petitioners under Articles 14 and 19(1)(g) stand
to reason. Merely because sale and purchase
agreement was entered into by the promoter
prior to coming into force of RERA does not make
the application of enactment retrospective in
nature. The RERA was passed because it was felt
that several promoters had defaulted and such
defaults had taken place prior to coming into
force of RERA. In the affdavit-in- reply, the UOI
had stated that in the State of Maharashtra
12608 ongoing projects have been registered,
while 806 new projects have been registered. This
fgure itself would justify the registration of
ongoing projects for regulating the development
work of such projects.”
62. It is apparent from the said decision that this
Court has held that the Act will only apply after the project has
been registered. Further, it has been held that the Act is
prospective in operation. Accordingly, it is apparent that the
Act cannot have any retrospective operation and will only
apply to those projects which have been completed and
registered either prior to commencement of the Act or in the
case of ongoing projects, the project or a phase thereof have
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been completed and received the occupancy certifcate / part
occupancy certifcate within the window of three months from
the date of commencement of Section (3) of the Act i.e. 1st May,
2017. In the present case, it is an admitted fact that the Real
Estate Project being developed by the Petitioners is an ongoing
project as contemplated under Section 3(1) of the Act. The
phase of which i.e. upto the 40th foor has been completed and
received part occupancy certifcate within the window of three
months from the commencement of Section 3 of the Act i.e. on
8th June, 2017.
63. Learned Senior Counsel for the Petitioners
has also drawn reference to circular No.18 of 2018 dated 17th
July, 2018 and circular No.23 of 2018 dated 27th November,
2018 issued by the Maharashtra Real Estate Regulations
Authority setting out standard operating procedure for
compliance of projects that though not registered ought to have
been registered. These circulars have granted a hearing as well
as opportunity to the informant to submit the details and pay
fee of Rs.5,000/- in the event that informant requires a hearing
with the Authority. It is submitted by the learned Senior
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Counsel for the Petitioners that these circulars will have no
bearing on a project or part thereof which does not require
registration on count of it having been completed and part
occupancy certifcate having been received.
64. We have considered these circulars and we
fnd that these circulars would have no application to those
projects which do not require registration i.e. projects or parts
thereof which have been completed and which have obtained
occupancy certifcate/part occupancy certifcate. Circulars
such as there would throw light on the interpretation of the
provisions of the Act. This has been held by the Supreme Court
in Desh Bandu (supra), K.P. Varghese (Supra) and S.B.
Bhattacharjee (Supra), which have been relied upon by the
learned Senior Counsel for the Petitioner.
65. We fnd that the Adjudicating Authority in the
impugned order has placed reliance upon the decision of the
Appellate Authority in Haresh Asher (Supra). From a reading
of the decision of the Appellate Authority, it is clear that
Appellate Authority has based its decision on the decision of
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this Court in Mohd Zain Khan (Supra). This is apparent from
paragraph 3 of the decision of the Appellate Authority dated
25th October, 2018 which reads thus:-
“3. The Ld. Adjudicating Offcer has referred to the

order in the matter of Prasad Patkar Vs. M/s.
Runwal Project Pvt. Ltd. wherein on 17th
November, 2017 the full bench of MahaRERA
indicated that MahaRERA gets jurisdiction to
entertain only those complaints which relate to a
registered project. However, in the judgment of
Mohammed Zain Khan V/s. Maharashtra Real
Estate Regulatory Authority in WP (L.) No. 908 of
2018 a statement by MahaRERA was made that
MahaRERA shall take cognizance of complaints
in respect of unregistered projects also.”
66. The Appellate Authority had ignored the
fndings of the Full Bench as well as of the Authority in the
Respondents/Complainants own case which held that the
MahaRERA gets jurisdiction to entertain only those complaints
which relate to a registered project. The Full Bench of
MahaRERA in its order dated 17th November, 2017, held that
since the complaint pertained to Tower B which had received
the part occupancy certifcate and was not registered under the
Act, MahaRERA did not have jurisdiction to entertain the
complaint and hence the complaint was not maintainable. In
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the Respondents/Complainants own case, in the First
Complaint, the Authority by following this decision of the Full
Bench in its order dated 18th December, 2017 held in
paragraph Nos.3, 4 and 5 as under:-
“3. However, the respondent has denied the

contention raised by the complainant and stated
that the present complaint is not maintainable, as
the complainant has booked a fat bearing
No.2503 on 25th foor of B-Wing of Building
known as the Lodha Diaro tower for which the
part occupancy certifcate has already been
issued by the competent authority on 8th June,
2017. Therefore, the said completed phase of the
project has not been registered with MahaRERA.
The respondent has submitted a copy of the part
occupancy certifcate on record of this Authority.
4. An identical issue has been dealt with by the
Hon’ble Full Bench of MahaRERA vide order
dated 17th November, 2017 passed in Complaint
No.CC006000000000182 along with other two
matters, wherein it was held that as per section 3
of the RERA Act, 2016, the ongoing projects
which have received the completion certifcate /
part occupancy certifcate do not require
registration and where the project is to be
developed in phases, every such phase shall be
considered a standalone real estate project.
5. In the present case, since that part occupation
certifcate for ground plus 40 upper foors which
includes the fat of the complainant, has been
obtained, there is no need to have registration
with MahaRERA. As the fat of the complainant is
not coming under the registered phase of the
project with MahaRERA, this Authority does not
have jurisdiction to entertain the present
complaint.”
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67. Thus, the Authority held that since the
Complainants had booked a fat bearing No.2503 on the 25th
foor of B Wing of the building Lodha Dioro for which part
occupancy certifcate had already been issued by the
competent authority on 8th June, 2017, there was no need to
have that phase of the project registered with MahaRERA.
Hence, the Authority had no jurisdiction to entertain the
complaint against the Petitioners. We fnd that the Appellate
Authority in Haresh Asher (Supra) has not considered the
decisions of the Full Bench and of the Authority in the
Respondents/Complainants own case although referring to
these decisions and based its decision only on the decision of
this Court in Mohd Zain Khan (Supra). This Court in the said
decision had observed that the online software system is not
equipped to entertain the complaints in respect of projects
which were not registered under the RERA Act. It is held that
the complaint tendered online by the Petitioner therein and
other similarly situated complainants, in respect of
unregistered projects would be entertained and the same would
be dealt in accordance with the procedure i.e. being adopted by
MahaRERA in respect of disposal of complaints in relation to
registered projects. This was in the context of cases where the
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projects in question required to be registered but had not been
registered. This has no relevance to the fact of the present case
which pertain to a project that does not require registration in
the frst place.
68. Given that the Authority in the First
Complaint preferred by the Respondents/Complainants had
decided the issue of maintainability against the Respondents /
complainants, we are of the view that it was not open for the
Adjudicating Offcer to have entertained the Second Complaint.
The decision of the Supreme Court in Sulochana Amma
(Supra) would have same bearing. In that decision, it was held
that when in a Suit for injunction when title is in issue for the
purpose of granting injunction, the issue directly and
substantially arises in that Suit between the parties. When the
same issue is put in issue in a later Suit based on title between
the same parties or their privies in a subsequent suit, the
decree in the injunction suit equally operates as resjudicata.
69. It is to be noted that subsequent to the
maintainability of the First Complaint having been decided
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against the Respondents/Complainants, a Writ Petition had
been preferred by the Respondents / complainants in this Court
being Writ Petition (L) No.2639 of 2018. It is apparent from the
pleadings and prayers in the said petition that the Respondents
/ complainants were also of the understanding that given the
issuance of the part occupancy certifcate to a phase of the
Petitioner’s ongoing project within the 3 month window, from
commencement of Section 3(1) of the Act, that phase did not
require registration under the Act.
70. The prayers in Writ Petition (L) No.2639 of
2018 read as under:-
“(a) Issue a Writ of Mandamus or a writ in the nature

of mandamus, or any other appropriate writ,
order or direction under the Article 226 of the
Constitution of India calling for the records and
papers pertaining to issuance of the part OC and
CC and, be pleased to quash the same.
(b) Issue a Writ of Mandamus or a writ in the nature
of mandamus, or any other appropriate writ,
order or direction under the Article 226 of the
Constitution of India, as the circumstances of the
case may require and direct the Respondent No.1
to revoke the Part OC dated 8th June, 2017;
(c) As the project is partially incomplete that
Respondent No.5 be directed to register the
Ground to 40th foors of Wings 3-6 with the
Authority established under the Real Estate
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Regulation and Development Act, 2016 once the

said part OC is revoked / quashed or even
otherwise;
(d) Direct Respondent No.5 to provide the Petitioners
with alternate accommodation till the demolition
of the upper foors is complete;
(e) Pending the hearing and fnal disposal, the
Respondent No.5 to be restrained from carrying
out further illegal demolition to the upper foors
of the said buildings in the absence of the
requisite permissions in accordance with
applicable law;
(f) Pending the hearing and fnal disposal of the
present Petition, Respondent No.5 be restrained
by an order and injunction of this Hon’ble Court
from giving possession to the other fat owners
who have not been given possession till date;
(g) Pending the hearing and fnal disposal of the
present petition. Respondent No.5 be restrained
by an order and injunction of this Hon’ble Court
from selling any unsold fats in Wing 3, 4, 5 and 6;
(h) Ad-interim and interim reliefs in terms of prayer
clause (d) to (g);
(i) The cost of the present Petition be provided to the
Petitioners;
(j) Such other and further reliefs be granted as this
Hon’ble Court seems ft.”
71. It is necessary to note that in paragraphs 21
and 22 of the pleadings, it has been stated as under:-
“21. Despite the illegal constructions in complete

violation of the NOC granted by the Respondent
nos.3 and 4, Respondent No.1 has granted the
aforesaid Part Occupation Certifcate dated 8
June 2017 (“Part OC”) with respect to Wings
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No.3, 4, 5 and 6 of the said project up to the 40th

foor of the said wings on 8 June 2017. A copy of
the said Part OC is hereto annexed and marked as
Exhibit I.
22. It appears that the said Part OC has been
hurriedly obtained by Respondent No.5 from
Respondent No.1 in order to avoid being subject
to the provisions of the Real Estate Regulation
and Development Act 2016 (“RERA”) which
required all real estate projects which had not
obtained an occupation certifcate to be
registered by 31 July 2017.”
72. This Petition has been disposed of by an order
dated 16th October, 2018 passed by the Division Bench of this
Court which had subject to directions issued in paragraph 24 of
the said order found no merit in the Petition. Paragraph Nos.19,
20, 23, 24 and 25 are relevant which read as under:-
“19. In the meantime, in view of the completion of the

construction of the building, respondent no.5
approached the MMRDA seeking part occupancy
certifcate so that the possession of the ready
fats could be handed over to the fat purchasers
who were awaiting possession of their units. The
MMRDA on 8 June 2017 granted part occupation
certifcate exercising power under sub-regulation
(8) of regulation 6 of the Development Control
Regulations which reads thus:-
Regulation 6:-
Sub-regulation (8) : Part occupancy certifcate :-
When requested by the holder of the development
permission, the Commissioner may issue a part
occupancy certifcate for a building or part
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thereof, before completion of the entire work, as

per the development permission, provided
suffcient precautionary measures are taken by
the holder to ensure public safety and health.
The occupancy certifcate shall be subject to the
owner's indemnifying the Commissioner in the
form in Appendix XXIII.
(emphasis supplied)
20. A plain reading of the above provision makes it
clear that a part occupancy certifcate of the
building or part thereof before completion of the
entire work, as per the development permission,
can be granted subject to precautionary
measures which may be provided by the
authorities. By exercising these statutory
powers, part occupancy certifcate was granted in
favour of respondent no.5. Accordingly acting on
the occupancy certifcate, possession of the
tenements was also handed over to the fat
purchasers since November 2017. Considering
the aforesaid clear provision as contained in the
Development Control Regulations, we do not see
any substance in the contention as urged on
behalf of the petitioner that the MMRDA in any
manner was prohibited from granting part
occupancy certifcate and the issuance of part
occupancy certifcate was illegal. The contention
of the petitioner that till the height of the building
was brought to its permissible level, part
occupancy certifcate ought not to have been
granted, also cannot be accepted, in view of the
above provisions of the Development Control
Regulations.
23. It is therefore clearly seen that no permission is
necessary for demolition of an existing structure
or building or part thereof which would be
undertaken to comply any statutory notice issued
by the planning authority save as otherwise if
prescribed in any law or any rules, regulations or
by-laws made under any law for the time being in
force. The petitioners are not in a position to
point out any embargo in law which would
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prohibit respondent no.5 from undertaking

removal or demolishing of the upper foors so as
to comply with the requirement of the height of
the building in the approval and sanction granted
by the concerned authorities. Thus, even on this
count the contention of the petitioners cannot be
accepted.
24. However, considering the concern of the
petitioners in regard to safety of the lower foors /
superstructure of the building, we direct the
MMRDA to supervise, the further work to be
undertaken by respondent no.5 in regard to all
precautions and safety norms to be observed in
removal of the remaining part of the upper foors
and restoration of terrace as per the
requirements and the approved plans.
Respondent no.5 shall inform the Competent
Authority of the MMRDA before commencing the
remaining work, so that MMRDA can supervise
the said work by deputing appropriate technical
persons. We also accept the statement as made by
the learned Senior Counsel for respondent no.5
that respondent no.5 shall be taking all care and
precaution in completing and restoring the
balance work on the upper foors.
25. In the above circumstances, except for the above
directions, we see no merit in the petition. It is
accordingly rejected. No costs.”
73. The Respondents/Complainants inspite of
having failed in its Writ Petition seeking revocation of part
occupancy certifcate granted to the Petitioners and directions
from this Court against the Authority to register the project of
the Petitioners under the Act, had fled Second Complaint
before the Adjudicating Offcer. This fling had been done by
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apparently misusing the RERA registration number of a
different phase of the another project. The Authority under the
Act had decided to constitute a Full Bench to decide the issue of
registration of the project or phase thereof which had received
the occupation certifcate within three months window under
Section 3(1) of the Act since there were numerous complaints
fled raising this issue. This order constituting the Full Bench
was challenged by the Respondents / Complainants herein by
fling Writ Petition No.3701 of 2019, which was disposed of by
this Court keeping challenge to jurisdiction of the Petitioner’s
open.
74. The issue of resjudicata has been brushed aside by
the Appellate Authority by placing reliance upon the decision of
the Appellate Tribunal in Haresh Asher (Supra) and
paragraph 30 of the impugned order reads as under:-
30. It is the contention of the respondent that since

there was a full bench order where it is held that
the authority will not get jurisdiction if the project
is not registered, the judgment of single member in
Asher’s case, is a judgment per incuriam. On the
other hand, it is submitted on behalf of complainant
that the judgment in Haresh Asher was upheld by
the Appellate Tribunal and it has achieved fnality.
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What was held by the learned Member and

Adjudicating Offcer was that though occupancy
certifcate was received, amenities as per
agreement were not provided and therefore, the
authority was having jurisdiction to decide this
issue. What was submitted on behalf of respondent
was that the order passed by learned Member was
interim order and not a fnal order. Later on
complaint came to be withdrawn and therefore,
there is no fnality to this order. The fact however
remains that the fnding of Hon’ble Member that the
authority is having jurisdiction as the amenities
were not yet provided as per agreement was upheld
by the Hon’ble Appellate Tribunal. Challenge to said
fnding was not pursued before Hon’ble High Court.
75. It has been held by the Supreme Court in the
case relied upon by the learned Senior Counsel for the
Petitioners in Virudhunagar Steel (Supra) that principles of
res judicata is also be applicable in cases, where inter alia Writ
Petitions have been disposed of by a speaking order. The
Adjudicating Offcer in the impugned order has not considered
the judgment of this Court in Writ Petition (L) No.2639 of 2018
which had not granted to the Respondents/Complainants the
relief sought for viz. revocation of the part occupancy
certifcate and upon which for registration of the Petitioner
project under the Act.
76. We do not fnd any substance in submissions
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of the learned Counsel for the Respondents / Complainants that
where there is a subsequent law in respect of registration of the
project, there cannot be estoppel or res judicata in regards to
such declaration of law. We fnd that the Appellate
Authority had inspite of knowing that there were
rejections of three complaints by authorities which included
the Respondents / Complainants complaint on the ground of
maintainability of their complaints, still upheld the fndings of
the Adjudicating Offcer on maintainability of the complaint on
the count that a change of situation occurred in the matter of
Mohd Zain Khan (Supra) which encompass within the sweep of
RERA, unregistered projects also. As observed above, the
decision of this Court in Mohd Zain Khan (Supra) does not give
any such fnding other than providing a mechanism for
entertaining complaints in respect of projects which although
requiring registration, have not been registered. This has no
bearing on the facts of the present case, where admittedly the
part occupation certifcate had been issued in respect of the
phase of the project of the Petitioners having been completed
and hence not requiring registration under the Act. The law
laid down by the Appellate Authority in the Haresh Asher
(Supra) cannot be considered to be a declaration of law and
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which would not make the principles of res judicata applicable
in the present case. The decisions of M.D. Jaiswal (Supra) and
Johnson (Supra) relied upon by the learned counsel for the
Respondents/Complainants in this context are thus not
applicable in the facts of the present case.
77. The submissions of the learned Counsel for
the Respondents / Complainants that registration of a project is
not a condition precedent for maintaining or entertaining a
complaint / application for refund or compensation or for
interest cannot be applicable to a project or phase thereof not
requiring registration on account of it being completed and
being issued an occupation certifcate. It has been clearly held
by the Division Bench in Neelkamal (Supra) that the Act is
applicable only to projects which are registered under the Act
and thus the complaint in respect of the project not requiring
registration cannot be maintainable. The provision under the
Act i.e. Section 59 which provides that non-registration of a
real estate project is an offence & punishable therein can only
apply to projects which although requiring registration have
not been registered in contravention of Section 3 of the Act. It
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is in this context that the Division Bench of this Court in
Neelkamal (Supra) held that the provisions of the Act are
retroactive.
78. Accordingly, we hold the frst issue viz.
whether the Adjudicating Offcer had no jurisdiction to
entertain the complaint as the subject project did not require
registration in terms of Section (3) of the Act, in the
affrmative.
79. Now coming to the second issue which has
been raised in the Petition viz. whether the procedure and
scheme of the Act warrant that it is solely within the
Authority’s sphere of powers to pass necessary orders and
directions pertaining to aspects of registration in terms of
Section 3 read with Section 31 of the Act? The Authority is
established under Section 20 of the Act and derives its powers
from Section 31 and its functions are contained in Section 34 of
the Act. It has been observed in Sections 34(1) of the Act that
the Authority has been entrusted with the function to register
and regulate the Real Estate Projects. It is further provided in
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Section 3 of the Act that for ongoing projects on the date of
commencement of the Act and where completion certifcate had
been issued, the promoter shall make an application to the
Authority for registration of the said project within a period of
three months from the date of commencement of the Act. The
power to adjudicate has been provided for under Section 71 of
the Act. It is provided under that Section that for the purpose of
adjudging the compensation under Sections 12, 14, 18 and 19,
the Authority shall appoint in consultation with the
Government one or more judicial offcers as deemed necessary
which is or has been a District Judge to be an Adjudicating
Offcer for holding an inquiry in the prescribed manner and
after giving the person concerned a reasonable opportunity of
being heard. Thus, the scope of the powers of the Adjudicating
Offcer is restricted to adjudication of compensation and only in
respect of violation of Sections 12, 14, 18 and 19.
80. Learned Counsel for the Respondents/ Complainant
have infact conceded that the Act contemplates bifurcation of
powers between the Authority and the Adjudicating Offcer. It is
for the Authority at the outset to determine whether the
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project requires registration and in cases where the project
does not require registration, the provisions of the Act would be
inapplicable. Learned Senior Counsel for the Petitioners is
correct in his submission that the Adjudicating Offcer could
never have adjudged the complaint under Section 71 of the Act
on account of the project not requiring registration. He has in
our view correctly submitted that issue of registration would
frst require determination by the Authority before
Adjudicating Offcer could take cognizance of the complaint.
This bifurcation between scope and powers of the authority and
Adjudicating Offcer has been acknowledged by this Court in
Lavasa Corporation (Supra). Paragraph 76, 77, 78 and 79 read
as under:-
“76. Moreover, if the Appellant is permitted to raise

such defence, it would be as good as allowing the
'Adjudicating Authority', established under the
RERA, to go behind the Registration Certifcate
for holding that the said registration under RERA
is not applicable to the project of the Appellant.
Can the Adjudicating Authority do so? The
answer has to be in the negative, if the scheme of
the RERA is considered. It is pertinent to note
that, under the RERA, there are two different
Authorities established; one is Real Estate
Regulatory Authority, which is defned under
Section 2(1) and established under Section 20 of
the RERA. It is conferred with the jurisdiction to
entertain the application for registration of the
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projects. As can be seen from the provisions of

Sections 3 and 4 of the RERA, application for
registration of real estate project is to be made to
this Real Estate Regulatory Authority,
established under Section 20 of the said Act.
Chapter 'V' of the RERA deals with the
'Establishment and Incorporation of the Real
Estate Regulatory Authority'. Section 21 thereof
deals with 'Composition of the said Authority' and
Section 22 thereof deals with 'Qualifcation of
Chairperson and Members of the Authority' . It is
for this Authority to consider whether to grant
registration or not and in case of breach of terms
and conditions on the part of the Promoter,
whether to revoke the said registration under
Section 7 of the Act. The Rules framed under the
RERA are more than suffcient to that effect.
77. As against it, the Adjudicating Authority under
the RERA is defned in Section 2(a) as the
'Adjudicating Offcer' appointed under sub-
section (1) of Section 71. This 'Adjudicating
Authority', as can be seen from Section 71(1) of
the Act, is established for the purpose of
adjudging the compensation under Sections 12,
14, 18 and 19 of the said Act. Section 31 provides
that, the complaints are to be fled by the
aggrieved persons under the RERA with the
'Adjudicating Authority' for any violation or
contravention of the provisions of this Act.
78. Therefore, the 'Authority', which grants
registration under RERA, is different than the
'Authority', which is established to adjudicate the
grievances of the aggrieved persons under the
said Act. One Authority cannot encroach on the
jurisdiction exercised or to be exercised by the
another Authority. Here in the case, the
'Registration Certifcate' to the Appellant is
granted by the Regulatory Authority, established
under section 20 of the said Act and now the
Appellant is calling upon the 'Adjudicating
Authority', established under Section 71 of the
RERA, to go behind that 'Registration Certifcate'
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and to hold that the provisions of RERA are not

applicable to the Appellant.
79. In my considered opinion, this course is not
permissible under the law to challenge the
Registration Certifcate issued by one 'Authority'
before the another 'Authority' and calling upon
that 'Authority' not to consider such 'Certifcate of
Registration' and then to hold that the RERA is
not applicable to the said project. Once there is
registration under the RERA, then it follows that,
all the provisions of the RERA become applicable
to such project, unless some phases are
specifcally excluded from registration. It also
becomes applicable to the persons, who have
invested in the said real estate project. It is
applicable both, to the Appellant and also to the
Respondents. The Appellant, after having taken
the advantage of registration under the RERA,
cannot turn back and say that the provisions of
the RERA are not applicable to the complaints
made by the Respondents in respect of the very
same project.”
81. It is is thus clear from this decision as well as
the scheme of the Act that the Authority which grants
registration under the Act is different from the Adjudicating
Authority.
82. The learned counsel for the Respondents /
Complainants has placed reliance upon decision of the Supreme
Court in the case of Pioneer (Supra). We fnd from this decision
that the bifurcation between the Authority and Adjudicating
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Offcer has also been spelt out. Paragraph 23 reads thus:-
“23. A perusal of the aforesaid provisions would show

that, on and from the coming into force of the
RERA, all real estate projects (as defned) would
frst have to be registered with the Real Estate
Regulatory Authority, which, before registering
such projects, would look into all relevant details,
including delay in completion of other projects by
the developer. Importantly, the promoter is now
to make a declaration supported by an affdavit,
that he undertakes to complete the project within
a certain time period, and that 70% of the
amounts realised for the project from allottees,
from time to time, shall be deposited in a separate
account, which would be spent only to defray the
cost of construction and land cost for that
particular project. Registration is granted by the
authority only when it is satisfed that the
promoter is a bona fde promoter who is likely to
perform his part of the bargain satisfactorily.
Registration of the project enures only for a
certain period and can only be extended due to
force majeure events for a maximum period of
one year by the authority, on being satisfed that
such events have, in fact, taken place.
Registration once granted, may be revoked if it is
found that the promoter defaults in complying
with the various statutory requirements or
indulges in unfair practices or irregularities.
Importantly, upon revocation of registration, the
authority is to facilitate the remaining
development work, which can then be carried out
either by the “competent authority” as defned by
the RERA or by the association of allottees or
otherwise. The promoter at the time of booking
and issue of allotment letters has to make
available to the allottees information, inter alia,
as to the stage-wise time schedule of completion
of the project. Deposits or advances beyond 10%
of the estimated cost as advance payment cannot
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be taken without frst entering into an agreement

for sale. Importantly, the agreement for sale will
now no longer be a one-sided contract of
adhesion, but in such form as may be prescribed,
which balances the rights and obligations of both
the promoter and the allottees. Importantly,
under Section 18, if the promoter fails to
complete or is unable to give possession of an
apartment, plot or building in accordance with
the terms of the agreement for sale, he must
return the amount received by him in respect of
such apartment etc. with such interest as may be
prescribed and must, in addition, compensate the
allottee in case of any loss caused to him. Under
Section 19, the allottee shall be entitled to claim
possession of the apartment, plot or building, as
the case may be, or refund of amount paid along
with interest in accordance with the terms of the
agreement for sale. In addition, all allottees are to
be responsible for making necessary payments in
instalments within the time specifed in the
agreement for sale and shall be liable to pay
interest at such rate as may be prescribed for any
delay in such payment. Under Section 31, any
aggrieved person may fle a complaint with the
authority or the adjudicating offcers set up by
such authority against any promoter, allottee or
real estate agent, as the case may be, for violation
or contravention of the RERA, and rules and
regulations made thereunder. Also, if after
adjudication a promoter, allottee or real estate
agent fails to pay interest, penalty or
compensation imposed on him by the authorities
under the RERA, the same shall be recoverable as
arrears of land revenue. Appeals may be fled to
the Real Estate Appellate Tribunal against
decisions or orders of the authority or the
adjudicating offcer. From orders of the Appellate
Tribunal, appeals may thereafter be fled to the
High Court. Stiff penalties are to be awarded for
breach and/or contravention of the provisions of
the RERA. Importantly, under Section 72, the
adjudicating offcer must frst determine that the
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complainant has established “default” on the part

of the respondent, after which consequential
orders may then follow. Under Section 88, the
provisions of RERA are in addition to and not in
derogation of the provisions of any other law for
time being in force and under Section 89, RERA is
to have effect notwithstanding anything
inconsistent contained in any other law for the
time being in force”.
83. It has thus been held by the Supreme Court
that under Section 72 of the Act that the Adjudicating Offcer
must frst determine that the complainant has established
the default on the part of the Respondent after which
consequential orders may follow. However, this default is to be
determined with regard to Sections 12, 14, 18 and 19 of the Act
for which there is a power of adjudication under Section 71 of
the Act. This has no bearing on the issue of registration under
the Act which is to be determined by the Authority. Learned
Counsel for the Respondents / Complainants also submitted
that the RERA Authority has two fold function, one on the
administrative and other on the judicial / adjudicatory side.
Thus the separation of powers is clearly envisaged by the
provisions of the Act and that merely because the proviso to
Section 71 provides for transfer of complaints in respect of
matters covered under Section 12, 14, 18 and 19 pending
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before the Consumer Dispute Redressal Forum or such other
Forum as established under Section 9 of the Consumer
Protection Act, 1986 on or before the commencement of the
Act, this does not detract from the powers of the Authority in
contradiction to Adjudicating Offcer to determine whether the
Real Estate Project is required to be registered under the Act.
84. Although in the impugned order it has been
held that there is bifurcation / dichotomy of complaints to be
fled, the Adjudicating Offcer, has gone on the premise that the
complainant has a discretion to either fle a complaint with the
Authority or the Adjudicating Offcer. This has been recorded in
paragraph 54 of the impugned order. In paragraph 55 of the
impugned order, the Adjudicating Offcer has gone on to hold
that if the Adjudicating Offcer is required to refer the
complaint to the Authority it would be beyond the provisions of
the Act, Rules, Regulations. It has further held that under sub-
section (d) of Section 72, the Adjudicating Offcer can consider
such factors as the Adjudicating Offcer considers necessary to
the case, in furtherance of justice. He has thus in paragraph 56
of the impugned order held that a complaint even when the
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project is not registered with the Authority is very much
tenable before the Authority or the Adjudicating Offcer in
respect of violation of the provisions under the Act by allotees
and promoters and Real Estate Agents and also where there is
a case of breach of the terms of the contract committed by the
allottees, promoters or real estate agents provided for by the
Act. He has gone on to answer the issue of jurisdiction in the
affrmative i.e. the Adjudicating Offcer has jurisdiction to go
into a complaint of the Respondents / complainants.
85. We fnd that the impugned order is passed contrary
to the provisions of the Act as well as the decisions of this Court
and the Supreme Court which have clearly held that the
Adjudicating Offcer has only the power to adjudicate
compensation under Sections 12, 14, 18 and 19. It is the
function of the Authority under Section 34 for registering and
regulating the Real Estate Projects. Thus it was the Authority
who had the jurisdiction to decide on registration of the project
under the Act. The Authority has already done so in the order
dated 18th December, 2017 disposing of First Complaint of the
Respondents / Complainants by holding that since the part
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occupation certifcate had been granted upto 40 th foor which
included the fat of the complainants that phase of the project
did not require registration with MahaRERA. Hence, the
Authority having held that it had no jurisdiction to entertain
the complaint, it was not open for the Adjudicating Offcer to
have decided otherwise in the impugned order.
86. We are thus of the view that the Adjudicating
Offcer had no jurisdiction to determine the registration of the
project or phase thereof under Section 3 (1) of the Act. This
was solely within the sphere of powers of the Authority to pass
the necessary orders and directions pertaining to aspects of
registration of the project or part thereof in terms of Section 3
read with Section 31 of the Act, being one of its functions under
Section 34 of the Act. Both the issues raised in the Petition are
thus decided in the affrmative and the relief sought for in the
Petition requires to be granted.
87. Accordingly, we pass the following order:-
(i) Rule is made absolute in terms of prayer clause
(a), which reads thus:-
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a) That this Hon’ble Court:-
i) be pleased to issue a writ of certiorari calling

for the records and proceedings leading to
issue of the impugned order date 31.12.2020
(Exhibit -B) and after considering legality,
validity, proprietary or otherwise thereof, be
pleased to quash and set aside the impugned
Order dated 31.12.2020 (Exhibit -B);
ii) be pleased to hold and declare that in view of

the Petitioner is not required to register the
phase of the project “Lodha Dioro” upto 40th
Floor under the provisions of Section 3 of the
Act in view of the part occupancy certifcate
in respect thereof having been obtained /
issued by the MMRDA prior to 1.8.2017.
(ii) The Petitioners are directed to remove all offce
objections on or before 31st March, 2021.
(iii) Writ Petition is disposed of. There shall be no
order as to costs.
( R. I. CHAGLA J. ) (K.K. TATED, J.)
99/99

Macrotech Vs State of Maharashtra

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Macrotech Vs State of Maharashtra

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Digitally signed

Sharayu Khot & JSN.

Macrotech Developers Limited

1. The State of Maharashtra

CORAM : K.K. TATED &

JUDGMENT : (Per R.I. Chagla, J.)

1. Rule. Rule made returnable forthwith.

2. By this Petition fled under Article 226 of the

Constitution of India, the Petitioners have sought quashing and

setting aside of the order dated 31st December 2020 passed by

the Adjudicating Offcer, Maharashtra Real Estate Regulatory

Authority (for short “MahaRERA”) in Complaint No. CC

006000000056889 (“the impugned order”).

3. The Petitioners have further sought for declaration

project “Lodha Dioro” upto 40th foors under the provisions of

Section 3 of the Real Estate (Regulation and Development) Act,

2016 (for short “the Act”), in view of the part occupancy

certifcate in respect thereof having been obtained/issued by

the Mumbai Metropolitan Region Development Authority (for

short “MMRDA”) prior to 1st August 2017.

4. The Petitioners are in the business of developing

claim to be one of the largest real estate developers in the

country with presence in foreign countries as well. The

Petitioners are developing a project at Wadala, Mumbai named

‘New Cuffe Parade’ (for short referred to as “ the project”). The

development is a phase-wise development.

5. Respondent No. 1 is the State of Maharashtra.

Respondent Nos. 2 and 3 are the Complainants on whose

complaint, the Adjudicating Offcer appointed under the

provisions of the Act has passed the impugned order which is

under challenge in this Petition. Respondent Nos. 2 and 3 for

the sake of brevity shall be referred to hereinafter as “ the

6. A commencement certifcate had been issued by

MMRDA in respect of the project on 20th February 2013

allowing the Petitioners to commence construction of the

buildings forming part of the project. Thereafter, the registered

agreement for sale had been entered into between the

Petitioners and the Complainants as the purchasers in respect

agreement for sale. The total consideration payable in respect

of the Flat is a sum of Rs. 2,70,78,705/- to be paid in a

staggered manner as more particularly provided for in Clause 5

of the said agreement. It was provided in Clause 11 of the said

agreement that the Petitioners would handover the possession

of the fat to the Complainants for ft out by 31st December

7. On 1st May 2017, the relevant provisions of the Act

required to register their ongoing projects with the concerned

Authority (in the present case, MahaRERA) within three

into force on 1st May, 2017 (i.e. by 31st July, 2017). It is to be

noted that the 2016 Act received the presidential assent on

25th March 2016.

8. Under the Maharashtra Real Estate (Regulation

and Development) (Registration of Real Estate Projects,

Registration of Real Estate Agents, Rates of interest and

Disclosures on Website) Rules, 2017 (for short “ the

Registration Rules”), Rules were made by the Government of

Maharashtra in exercise of its powers conferred by Clauses (a),

(ab), (ac), (b) to (k), (oa), (p) and (zf) of Sub-section 2 of

Section 84 of the Act. These Registration Rules were published